International Law and Indigenous Knowledge: Intellectual Property, Plant Biodiversity, and Traditional Medicine 9781442676244

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INTERNATIONAL LAW AND INDIGENOUS KNOWLEDGE: INTELLECTUAL PROPERTY, PLANT BIODIVERSITY, AND TRADITIONAL MEDICINE

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CHIDI OGUAMANAM

International Law and Indigenous Knowledge Intellectual Property, Plant Biodiversity, and Traditional Medicine

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

www.utppublishing.com © University of Toronto Press Incorporated 2006 Toronto Buffalo London Printed in Canada ISBN-13: 978-0-8020-3902-6 ISBN-10: 0-8020-3902-2

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication Oguamanam, Chidi, 1965– International law and indigenous knowledge : intellectual property, plant biodiversity and traditional medicine / Chidi Oguamanam. Includes bibliographical references and index. ISBN-13: 978-0-8020-3902-6 ISBN-10: 0-8020-3902-2 1. Intellectual property (International law). 2. Indigenous peoples – Legal status, laws, etc. 3. Indigenous peoples – Intellectual life. 4. Traditional medicine. 5. Ethnobotany. 6. Ethnopharmacology. I. Title. K1401.O38 2006

346.04¢8

C2006-902390-5

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

To my father, John Oguamanam, and my mother, Appolonia Oguamanam, I dedicate this book with gratitude beyond what written or spoken words can express

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Contents

Preface xiii Acknowledgments Abbreviations

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1 General Introduction and Overview 3 Knowledge: The New Frontier of the Indigenous Question 3 Intellectual Property and the Search for Equity 16 Traditional Knowledge of Plant-Based Therapy and the Socio-Cultural Imperative 12 Traditional and Western Scientific Knowledge Systems 14 Science as a Site of Contest 18 Indigenous/Traditional Knowledge 20 Traditional Knowledge of Plant-Based Therapy 26 Applicability of Intellectual Property Rights to Traditional Knowledge 28 Overview 32 2 Conceptual Perspectives on Biodiversity, Traditional Knowledge, Intellectual Property, and the Protection of Indigenous Peoples in International Law 35 Biodiversity 36 Defining and Understanding the Concept 36 The Essence of Plant Biodiversity 38 Bioresources: Global ‘Assets’ in Southern Borders 39 Biodiversity in Crisis 40 The Diversity of Biodiversity Benefits 43 Biodiversity: Two Concepts of Values 48

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Traditional/Indigenous Knowledge Systems 49 Colonialism and Epistemic Conflict 49 Therapeutic Uses of Plants: A Glimpse of Indigenous Epistemic Holism 52 Indigenous Knowledge as Marginalized Knowledge 53 Intellectual Property Rights The Concept of Intellectual Property 57 International Law Relating to Indigenous Peoples 61 The Indigenous Question in International Law: A Historical Perspective 62 Indigenous Activism 67 State Practice: Sanctioning Indigenous Claims 68 International Law on Indigenous Peoples: Publicists’ Perspectives 71 3 International Law and Traditional Knowledge of Plant-Based Therapy 74 Indigenous Knowledge as Part of International Law on Indigenous Peoples 74 General Conceptual Analysis 74 Indigenous Knowledge in the Fourth and Third Worlds 76 Indigenous Knowledge under the United Nations Framework 77 Indigenous Knowledge under the ILO Convention No. 169 (1989) 78 The Rio Declaration and Agenda 21 79 Indigenous Knowledge and the Convention on Biological Diversity 80 The United Nations Draft Declaration on the Rights of Indigenous Peoples 81 United Nations Bodies: WIPO, UNESCO, and UNDP 83 Draft Principles and Guidelines on Indigenous Heritage 86 OAS Draft Declaration on the Rights of Indigenous Peoples 86 Other Initiatives 87 Regional Trends 87 The Protection of Traditional Therapeutic Knowledge 91 Traditional Therapy under the ILO Convention No. 169 (1989) 92 Traditional Therapy under the United Nations Draft Declaration 92 Traditional Therapy under the OAS Draft Declaration 93

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Traditional Therapeutic Knowledge under the WHO 94 WHO Policy on Traditional Medicine 96 State Practice and Traditional Medicine 100 Industrialized Countries 101 Developing Countries 102 Perspective on the Worldwide Status of Traditional Medicine 107 The WHO and Traditional Medicine: Of Timidity and Scientific Hegemony 107 Summary 108 4 The Sociocultural Context of Traditional Knowledge of Plant-Based Therapy 111 Traditional Therapy and Western Biomedicine: The Paradigmatic Divergence 112 Between the Biomedical and the Psychosocial 112 Theories of Illness 114 The Central Role of Plants in Traditional Therapy 118 Plant Therapy: Some Biblical Insight 119 Plants under Unani Medical Tradition 120 Plant Medicine in Ayurveda 120 Plants in Traditional Chinese Medicine 121 Plant Medicine in Native American Therapeutic Traditions 122 Plant Medicine in Humoral Therapy in Latin America 124 Plants in African Therapeutic Systems 125 Summary 126 Traditional Therapeutic Systems: Beyond Active Substances 126 The Social Position of Traditional Healers 126 Power and Environment: The Healer and the Sick 128 Two Kinds of Therapeutic Environment 129 The Performance of Healing 132 Words as Performance 133 Transcendental Dimension 135 Multivalence of Traditional Therapeutic Methods 136 The Scientific Question and Situational Logic 139 Summary 143 5 Intellectual Property Rights and Traditional Knowledge of PlantBased Therapy: The Filtration of Indigenous Knowledge 145 Intellectual Property Rights in the Context of Traditional Medicine 146

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Intellectual Property Rights and Traditional Medicine in Key Instruments 146 Intellectual Property Rights and Traditional Medicine under the WHO and the WIPO 149 Intellectual Property Rights and Traditional (Medicinal) Knowledge: The Demand of Indigenous Non-Governmental Organizations 153 The Intellectual Property Debate 155 Conceptual Objections 156 The Communality Argument 158 Legal Personality 159 The Public Domain / Common Heritage Argument 160 Other Considerations of a Practical Nature 162 Patents and Traditional Knowledge of Plant-Based Therapy: Investigating the Trade-offs 163 The Nature of Patents 163 Plants as Patentable Subject Matter 165 Tests of Patentability and Products of Nature Rhetoric 170 The Case for Patentability of TKPT 172 Patentability of TKPT: The Epistemic Cul-de-sac 173 Biopiracy Patents: Beyond Economic Considerations 176 Beyond Patenting: Folkloric Protection for TKPT 180 Intellectual Property at the Periphery: Geographical Indications 184 Patenting TKPT: Some Reflections 186 On Self-Determination 186 On Medical Pluralism 188 6 Toward a Cross-cultural Dialogue on Intellectual Property Rights 191 Appraising the Discussion 192 Indigenous Knowledge: Economic Reward versus Cultural Integrity 195 Access Regimes 196 Article 8(j): Beyond Access to Cultural Integrity 198 Indigenous Knowledge: Legal Empowerment from Within 201 The CBD and WIPO: Embracing the Cross-cultural Dialogue 205 The COP and Ad Hoc Working Group on Article 8(j) 206 The WIPO’s GIPI Program and the Inter-governmental Committee 208

Contents

Knowledge Protection outside the Regime of Conventional Intellectual Property Rights 214 The Cross-cultural Approach as a Framework 220 Notes

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Bibliography Index

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Preface

This book explores the progress in international law to recognize and protect the knowledge of indigenous and local communities. It focuses on traditional medicine and the central role played by plant biodiversity in this aspect of local knowledge. It establishes that the ongoing debate regarding the protection of indigenous knowledge is dominated by the question of the suitability of mainstream intellectual property rights protection to indigenous knowledge. However, efforts to reconcile the Western concept of intellectual property rights with indigenous knowledge forms have not been cognizant of the epistemic schism between indigenous and non-indigenous knowledge systems. Intellectual property rights, particularly the patent regime, are designed to legitimize or validate a Western scientific approach to phenomena. Indeed, the patent process does not recognize the sociocultural character of science. Seeking to protect indigenous knowledge by means of mainstream intellectual property rights, even in their suggested sui generis forms, without accommodating the idea of epistemic pluralism may be counterproductive to the goal of protecting indigenous knowledge. Because of patent’s appeal to a narrow view of science, it privileges Western biomedicine over traditional medicine. Consequently, the psychosocial foundation of traditional therapeutic culture is not accounted for by conventional intellectual property. In traditional medicine, the therapeutic and the pharmaceutical are fused within an indigenous holistic world view. However, Western biomedicine does not recognize such a fusion. Rather, its fragmentary or organismic approach both in theory and practice is one that readily fits within the mould recognized by conventional intellectual property. To protect indigenous knowledge, particularly traditional medicine,

xiv Preface

and, consequently, to advance the movement toward medical pluralism, this book makes a case for a cross-cultural approach to intellectual property rights. Modalities for the protection of knowledge that recognize the importance of cultural integrity and the contexts in which knowledge forms are generated have become imperative. Perhaps the most appealing starting point would be the prevailing customary norms and knowledge protection protocols within indigenous communities. Knowledge protection mechanisms do not necessarily have to imitate mainstream intellectual property rights. A cross-cultural approach to the protection of knowledge, unlike the conventional intellectual property framework, is an inclusive and not an exclusive enterprise. Such an approach endorses the notion that intellectual property could advance a balanced, as opposed to a narrow, cultural vision. This book proposes the cross-cultural approach as an option that deserves serious consideration in ongoing international efforts to develop an appropriate protective mechanism for indigenous knowledge, a mechanism that does not compromise indigenous cultural integrity and the inherent benefits of epistemic pluralism. This is one way out of the crisis of legitimacy that currently plagues the intellectual property protection and regulatory system.

Acknowledgments

In writing International Law and Indigenous Knowledge, I have relied on the contributions of many scholars in diverse disciplines, tapped into insights provided by many institutions, and heeded the counsel of many indigenous voices. I am grateful to these numerous sources that supplied the stock of knowledge that have informed my contributions in this interdisciplinary endeavour. From conceptual stage to the last ink drop, International Law and Indigenous Knowledge was the compass with which I navigated a rich intellectual and social terrain and made consequential transitions that started from the University of British Columbia through my current tenure at Dalhousie Law School. Many wonderful people from different parts of the globe and various institutions invested their intellect, goodwill, time, and innumerable resources, without which this book could not have been possible. Professor Maurice Copithorne and his wife, Tamar, provided legendary support in different fronts. Maurice, a seasoned diplomat and international law scholar, with great interest in peoples and cultures, kept me on my toes and tasked my knowledge of indigenous peoples and cultures across the globe. He never ceased to daunt me with materials and information on my research, often from unimaginable sources. Professor Wes Pue ensured that I was rigorously equipped and ‘initiated’ into theories and cutting-edge legal scholarships that gave me a confident handle on my subject. An intellectual encyclopedia, humanist and scholar, Wes contributed infectious exchanges and interventions that were provocative and inspirational. Aside from his intellectual support, his efforts opened several funding and conference opportunities with rewarding outcomes across the United States, Canada, Mexico,

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South Africa, and Nigeria. Professor Bob Paterson made available his vast network of scholarly contacts. Bob’s timely intervention, often at a great personal inconvenience, ensured the realization of International Law and Indigenous Knowledge. Bob, I am eternally grateful. This book shares in the benefit of Professor Ikechi Mgbeoji’s intellect through many formal and informal conversations and collaborative research. Mgbeoji brought a lot of clarity and insight on the subjects of indigenous knowledge forms, international law, and the intellectual property system to which both of us are passionately dedicated. Other professors and staff of the Faculty of Law at UBC deserving of my special thanks include Professor Ian Townsend-Gault, the late Professor Stephan Salzberg (a very dear friend of mine whom fate did not permit to see this book in print), Nancy Wiggs, Joyce Robinson, Elaine Borthwick, Darling Beck, Joanne Chung, Bernie Flinn, and Christie Webb. The UBC Law Library team led by a kindhearted and graceful lady, Sandra Wilkins, gave me support beyond the ordinary. Other members of this team are Mary Mitchell and Shauna Barry. To my other friends and colleagues in residence at UBC, Joanne Lee, Walter Mckay, Emily Lee, Ify Dimoriaku, Angela Cameron, Rod Jensen, Michael Stevenson, Justice Norbu Tshering and Dawn Marsden, I say thanks for the good times by the fireplace and for the memories we share. Professors Obiora Okafor, Obijiofor Aginam, Gloria Onyeoziri-Miller, Dr. Oladiipo, and Modupe Ajiboye, my Nigerian compatriots and friends, brought thankful help at times of need. Profound thanks to Professor Bruce G. Miller, Pastor Mitch and Debbie Clarke, Professor Robert Miller, Hon. Justice O.O. Oke, Dr. Stewart Uyi, Bambo Adewopo, and Professor ‘Lanre Fagbohun. At Dalhousie, Professor Jocelyn Downie gracefully ensured that I continued work on this book. Her enthusiasm gave me staying power. Jocelyn and the Dalhousie Health Law Institute provided much-needed impetus, which was complemented by Professor Sue Sherwin and her colleagues in the Canada Institute of Health Program in Ethics of Health Research and Policy during my short stint with them. I offer immense thanks the Law and Technology Institute and my colleagues Professors Teresa Scassa and Michael Deturbide for their support. Other colleagues at Dalhousie Law School whose benevolence was deployed at different times and in various forms during the course of writing this book include Professors Michelle Williams, Vaughan Black, Philip Girard, David Vander-Zwaag, David Blaikie, Moira McConnell, Meinhard Doelle and Bruce Archibald. My other friends at

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Dalhousie Law School, David Dzidzornu and Peter Dostal, were uneconomical with their time. My editor, Virgil Duff, deserves the credit for behind-the-scene initiatives that gave International Law and Indigenous Knowledge its life. I am eternally indebted to Ann and our daughter, Emma Ekeoma, to my siblings Eunice, Florence, Tunde, Eddy, I.K., and Ngozi. And last but most important, I thank my dad, Johnnie, and mom, Appolonia, for giving me the all-important lifelines and for laying the foundation that continues to shape my world view.

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Abbreviations

ACT AMREF ASEAN ASIL AU CAM CBD CGRFA CITP COICA COP CSI ECJ ECOSOC EIA ETC FAO FCTC FDC FFM FRLHT GA Res. GEF

African Centre for Technologies African Medical and Research Foundation Association of South East Asian Nations American Society of International Law African Union complementary alternative medicine Convention on Biological Diversity Commission on Genetic Resources for Food and Agriculture Charter of Indigenous-Tribal Peoples of Tropical Forests Coordinating Body of the Indigenous Peoples of the Amazon Basin Conference of Parties Cultural Survival International European Court of Justice Economic and Social Council environmental impact assessment Action Group on Erosion, Technology and Concentration Food and Agricultural Organization Framework Convention on Tobacco Control Four Directions Council fact-finding missions Foundation for the Revitalization of Local Health Traditions General Assembly Resolution global environmental facility

xx

Abbreviations

GIPI GRAIN HMOs ICBG ICCPR ICIP ICJ IDCRA

global intellectual property issues Genetic Resources Action International health management organizations International Cooperative Biodiversity Group International Covenant on Civil and Political Rights Indigenous cultural and intellectual property rights International Court of Justice International Conference for Drug Regulatory Authorities IDRC International Development Research Center IGC-GRTKF Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore IHR international health regulations IK indigenous knowledge ILM International Legal Materials ILO International Labour Organization IPBN Indigenous Peoples Biodiversity Network IPGRI International Plant Genetic Resources Institute IPRs intellectual property rights ITRGRA International Treaty on Plant Genetic Resources for Food and Agriculture IUCN International Union for Conservation of Nature IUPGR International Undertaking on Plant Genetic Resources IWGIA International Working Group on Indigenous Affairs NAFTA North American Free Trade Agreement NCI National Cancer Institute NGOs non-governmental organizations NRC National Research Council OAS Organization of American States OAU Organization of African Unity OECD Organization for Economic Cooperation and Development PBRs plant breeders’ rights PFII Permanent Forum on Indigenous Issues PGFR Plant Genetic Resource for Food and Agriculture PRHETIH Primary Health Training for Indigenous Healers RAFI Rural Advancement Foundation International QUNO Quaker United Nations Offices RGTM Research Group on Traditional Medicine

Abbreviations xxi

SAP TBA TCM TEK TKDL TKTP TK TM TRIPS TRR TWN UDHR UN UNCTAD UNDP UNEP UNESCO UNGA UN GAOR UNGIP UNHRC UNTS UPOV USPTO WB WCMC WHA WHO WIPO WRI WTO WWF

structural adjustment program traditional birth attendants traditional Chinese medicine traditional ecological/environmental knowledge Traditional Knowledge Digital Library traditional knowledge of plant-based therapy traditional knowledge traditional medicine Trade-Related Aspects of Intellectual Property Rights traditional resources right Third World Network Universal Declaration of Human Rights United Nations United Nations Conference on Trade and Development United Nations Development Program United Nations Environmental Program United Nations Educational Scientific and Cultural Organization United Nations General Assembly United Nations General Assembly Official Record United Nations Working Group on Indigenous Peoples United Nations Human Rights Commission United Nations Treaty Series International Union for the Protection of New Varieties of Plants United States Patent and Trademark Office World Bank World Conservation Monitoring Centre World Health Assembly World Health Organization World Intellectual Property Organization World Resources International World Trade Organization World Wildlife Fund

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INTERNATIONAL LAW AND INDIGENOUS KNOWLEDGE: INTELLECTUAL PROPERTY, PLANT BIODIVERSITY, AND TRADITIONAL MEDICINE

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1 General Introduction and Overview

Knowledge: The New Frontier of the Indigenous Question In the post- or neo-colonial era, the question of fair and equitable treatment of indigenous peoples remains a subject of international political and legal discourse.1 The sometimes related experience of all colonized peoples is perhaps the basis of their confrontation or engagement with the dominant culture in a postcolonial dialogue. The dialogue of postcolonialism is an exercise in the critical exploration of the West’s relation to its ‘other,’2 conveniently depicted as the non-Western and/or indigenous peoples. Looking back to the times when indigenous peoples (of both the enclave territories3 and in far-flung colonies) were regarded as creatures on the fringe of humanity, we can see that some progress has been made. Varying degrees of political independence have been granted to virtually all colonial outposts in Africa, Asia, and the Americas. Even in the enclave territories – where there was no settler withdrawal – recent judicial victories and policy reversals, including the granting of semi-autonomous government status to indigenous peoples, are all signposts of change.4 Yet, in the postcolonial era, attention has increasingly focused on ‘knowledge’ in its complex manifestations. Indigenous knowledge is part of the ‘seeming promiscuity of concerns’5 that jostle under the postcolonial umbrella. The framework of human rights and self-determination in which the indigenous issues were originally tabled does not exclude the epistemic question. Historically, however, the political emphasis of that framework would appear not to prioritize concerns about the protection of indigenous knowledge. Rather, before now, efforts were directed at indigenous self-government and incidental political rights.

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The traditional knowledge of the indigenous or local peoples is an integral part of their being and identity. Self-determination and human rights are more relevant to the indigenous cause where they incorporate the cultural identity of the peoples. Indeed, self-determination or human rights transcend political contexts. Separating the political context of those rights from the cultural and epistemic milieu of local people may not be helpful to their interests in the long run. Enduring indigenous political empowerment is best rooted in cultural identity. Many indigenous or non-Western epistemic world views are based on the ecological and spiritual imperatives sustained through the complex machinery of traditional or indigenous knowledge systems. The political emphasis of the indigenous question has not accorded adequate attention to indigenous world views until recently – that is, since the 1980s.6 These developments are exemplified in the context of efforts to address the global biodiversity crisis. The 1980s marked a high point of concern about the loss of global biodiversity. Numerous reasons have been given for the decline in global biodiversity. One is the problematization in some accounts of the so-called stress on biodiversity by indigenous and local peoples.7 However, other accounts of the global environmental predicament, including biodiversity loss, implicate, among others, pressures from industrialization.8 As regards biodiversity, the concern has been exacerbated, in part, by the growth in life science industries. An incidence of that growth is the renewed interest of pharmaceutical, agricultural, and biotechnology industries in plant-based genetic materials originating in the biodiversity of gene-rich countries. A critical focus of public attention is the declining medicinal riches of mainly tropical plants in most of those countries. A watershed in the resolve to check what has been termed the ‘global biodiversity crisis’ was attained in 1992 through the United Nations’ framework Convention on Biological Diversity (CBD).9 The CBD seeks to set an agenda for addressing key aspects of the concerns. The CBD creates a global regime to govern access to genetic resources and to share benefits from their use, and it provides a framework for the evolution of national and regional regimes in that regard. It outlines a form of compromise between gene-rich developing countries and technologically endowed collectors from the North in what has been described as a ‘grand bargain.’10 Without doubt, the Convention is a binding international instrument. However, concerns about its effectiveness arise in part from its framework model. Apart from debates

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over the status of the CBD, the Convention is criticized in some other respects. As a regime aimed at the conservation of biodiversity, it is also aimed at facilitating its exploitation and even commercialization.11 Despite its shortcomings, the CBD represents perhaps the most authoritative international instrument yet that recognizes the traditional knowledge of indigenous and local communities. The Convention’s principal objectives include ‘the conservation of biological diversity … and the fair and equitable sharing of benefits arising from the utilization of genetic resources.’12 To attain its objectives, through article 15, the Convention encourages parties to institute access and benefitsharing schemes in respect of biological resources. This book is concerned in part with the CBD’s proactive disposition toward indigenous bio-cultural knowledge and other developments in international law for the protection of such knowledge. In article 8(j), the CDB requires parties to ‘[r]espect, preserve, and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles … [a]nd to promote their wider application with the approval and involvement of holders of such knowledge.’ The CBD underscores the importance of traditional knowledge. It acknowledges the role of intellectual property and technology transfer mechanisms in advancing that knowledge. Perhaps CBD’s essence lies in recognizing the importance of indigenous or local knowledge in a way that no instrument before it attempted to do. I focus on the entrenchment of traditional knowledge in international law. I am concerned in particular about traditional therapeutic knowledge (or traditional medicine) and the debates relating to its protection as an aspect of the people’s cultural identity. The value of traditional knowledge is now appreciated outside its epistemic and geographic confines. So-called scientific breakthroughs in agriculture, pharmacology, biomedicine, and genetic and conservation sciences, to mention a few areas, have been linked either directly to indigenous or traditional knowledge or indirectly to insights therefrom. A few examples are helpful. If traditional knowledge is used, the possibility of developing at least one marketable pharmaceutical from a thousand plant samples rose from 22 to 78 per cent, or three and a half times.13 Using traditional knowledge, the efficacy of screening plants for medicinal properties increased by more than 400 per cent.14 The annual market value of pharmaceutical products derived from tropical rainforest plant–based medicinal knowledge of indigenous peoples exceeds US$43 billion.15 Traditional healers have employed most of the seven thousand natural

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compounds used in modern medicine today for centuries. Twenty-five per cent of American prescription drugs contain active ingredients whose use was derived from indigenous knowledge of plants.16 The same percentage of all prescription drugs comes from rainforest plants, and 75 per cent of these have been gathered from information provided by indigenous peoples.17 All over the world, especially in the United States, a number of pharmaceutical companies are dedicated to searching for drug discoveries based exclusively on indigenous or so-called shamanic knowledge.18 Apart from reflecting the interpenetration of knowledge systems, these trends have a downside, in that they make local knowledge forms vulnerable to appropriation; therefore, the need for the protection of indigenous knowledge is as persuasive as the desire to protect all knowledge owners. There is a clear link based on a relationship of dependence between indigenous peoples and their knowledge. For instance, over 80 per cent of indigenous or local peoples are said to rely on traditional medicinal practices for their health care.19 Intellectual Property and the Search for Equity It is argued in some quarters that ‘once the value of indigenous knowledge becomes obvious, efforts to channel greater resources and power to indigenous populations will begin to take place.’20 In part, this is the premise on which the concept of intellectual property (IP) enjoys so much prominence as an instrument capable of protecting indigenous knowledge and empowering its practitioners. Intellectual property rights (IPRs) are the West’s primary mechanism for the allocation of rights over knowledge and its products. Because IPRs, especially patents, reify Western scientific tradition, their application to indigenous knowledge forms may be somewhat problematic. It is quite possible that IP initiatives could produce results capable of eroding local knowledge, even if the proponents do not envisage such a consequence. This book draws attention to the potential impact of IPRs, especially the patent regime in the context of traditional therapeutic experience. Most of the agreements on access to genetic resources inspired by the CBD aim at mitigating the acknowledged inequity in the global appropriation of the benefits of genetic resources. This inequity is in favour of the industrialized North against the less industrialized South and other indigenous communities within the Western Hemisphere. The South, especially its rural populations, is recognized as a crucial force in

General Introduction and Overview

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biodiversity conservation. Biological diversity and sustainable ecological practices are central to the lived reality of indigenous experiences. Collectively, indigenous and local peoples in the South and elsewhere insist on being given appropriate rights as stakeholders in the biodiversity enterprise. The search for equity is crucial for the empowerment of local knowledge holders and the preservation of biodiversity. As part of that endeavour, IPRs have been promoted to mitigate inequity in bioresource exploitation. Part of the argument goes as follows: ‘If those who control a habitat hold proprietary rights to develop its biological resources, then they have a means for obtaining economic benefits from those resources and consequently, an incentive to conserve rather than destroy them ... this market-based approach may also promote equity because it allows local people to share benefits deriving from conservation and knowledge of genetic resources.’21 For a number of reasons, IPRs’ ability to deliver the promise of equity and other claims made on their behalf is highly debated. First, IPRs are a traditional subject of North–South disagreement.22 There is mutual suspicion between the two geopolitical groupings on the IP subject, specifically with regard to its nature and the extent to which it serves their various interests. The two perspectives may be put in a nutshell: the North prescribes its own IP forms to the South as an instrument of technology transfer and as capable of enhancing the latter’s economic development; the South sees such IP forms as an impediment to technology access and a design to appropriate local knowledge.23 Second, the sophistication and aggression that modern genetic science, biotechnology, and so forth have brought to biodiversity prospecting is seen as posing a threat to genuine biodiversity conservation. IPRs protect this industrial model of exploitation. Compared with informal and less intense modes of bioresource exploitation prevalent in the indigenous communities, which enjoy virtually no protection in the nature of Western IP modes, the South is placed at an apparent disadvantage. Biodiversity conservation is also disabled in this scenario. Therefore, formal IPRs risk sidelining the traditional custodians of wild habitat, that is, the world’s indigenous and local peoples. Third, recent global harmonization of IPRs recognizes the Western conventional approach in the application and use of biodiversity components, which is at the expense of non-Western or informal methods. For instance, there is no mention of the informal, traditional, or ecological knowledge of local people in the most authoritative regime on

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IPRs – the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. The controversial article 27 of the TRIPS Agreement makes reference to alternative forms for the protection of knowledge.24 Nonetheless, industrialized countries insist that such alternatives should take the likeness of Western IPRs.25 Lastly, the IPR, as an instrument of market economy, is seriously unsuitable to traditional knowledge. Traditional knowledge thrives in a sociocultural context different from a market economy paradigm. Finding a way for IPRs to accommodate traditional knowledge is an important part of the desire for equitable distribution of the benefits of biodiversity. Proposals have been made for the emergence of unique, hybrid, or alternative (sui generis) regimes of IPRs. The quest for sui generis IPRs is pursued alongside the insistence in some quarters that the historical malleability of the orthodox IPRs is sufficient to accommodate traditional knowledge.26 It does not seem, however, that the two approaches are mutually exclusive. It can be argued that the sui generis idea derives from the malleable character of IPRs. Nonetheless, a sui generis construct based on the elements of mainstream IPRs subjects traditional knowledge to Western epistemic hegemony. This book argues that the integrity of traditional knowledge and indigenous peoples is better served by an imaginative sui generis regime, which does not necessarily have to be an imitation of the mainstream IP model. Conceptualizing local knowledge as an information resource for facilitating the extraction of active substances, or what has been decried as the regime of ‘extractivism,’27 does not advance indigenous interests. Representing a Western scientific and cultural perspective, such conceptualization does not adequately describe traditional knowledge, especially traditional therapeutic practices. No knowledge is exercised in a cultural vacuum. For instance, traditional healing practices happen within a complex psychosocial paradigm. Health systems have broadranging ties with people’s cosmology.28 The orthodox IP approach takes a fragmentary view of local knowledge. Perhaps nowhere is this more apparent than in the area of traditional knowledge of plant-based therapy (TKPT) or traditional medicine. I use the abbreviation TKPT for convenience. Knowledge of uses of plants in traditional therapy is presumed to include associated practices. This book emphasizes the role of plants in traditional therapy. TKPT is used here as a synonym for traditional medicine, notwithstanding that traditional medicine transcends the use of plants or herbalism. The local context and complex nature of indigenous and

General Introduction and Overview

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traditional communities’ relationship to the ecosystem in general, and their medical or healing practices in particular, are undermined when it is investigated (for instance, as the patent regime does) only for active compounds to be extracted. Similarly undervalued is the increasing need for pluralism in medical knowledge for which TKPT holds a great potential. The imperative for medical pluralism – more than one epistemic approach to therapeutic intervention – stems from the fact that no health system provides self-sufficient solutions to all medical conditions. Moreover, there is no end yet in the search for the cures of the diseases that afflict humanity. New diseases continue to be discovered, leaving open every option in the search for therapeutic cure. This book examines TKPT from its holistic perspective in order to evaluate the viability (or otherwise) of IPRs to that body of knowledge. The culture of extractivism (extracting active compounds from biological resources) endorsed by IPRs, especially patents, fosters a biomedical or allopathic hegemony at the expense of medical pluralism or cooperation among medical systems.29 Extractivism thrives in a Western scientific paradigm. That approach depicts a gap in cross-cultural understanding of phenomena. In the words of Nathan Sivin, this tendency goes ‘back to the days when empire and colony were good words in Europe … As they apply to our topic, they assume that plant exploration involves different kinds of resources that different kinds of people hold. One resource is know-how and the other is raw material.’30 For the 80 per cent of the world’s politically disempowered poor who rely on TKPT for their health needs,31 the implication is evident. The bulk of them cannot afford the high cost of Western medicinal services. Perhaps more important, indigenous peoples have faith in the efficacy of the traditional therapeutic approach, which is a complementary aspect of most indigenous or local peoples’ cultures. The narrow focus on extractivism has its own constraints. New technologies in the fields of synthetic and combinatorial chemistry, genomics, bioinformatics, and recently nano/atomtech32 threaten reliance on natural products and biological diversity.33 For instance, chemical structures derived from plants or animals provide models for artificial or synthetic alternatives. They are often procured at low cost. While chemists can synthetically modify and improve a molecule, no one can fathom nature’s own bioactive molecules. These trends in Western science and technology may provide attractive alternatives to natural products; they would not, however, dispense completely with the primary utility of natural products. Again, extractivism promotes the twin practice of

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biotrade and bioprospecting. The former refers to international trade in genetic resources, whereas the latter is the search for genetic resources of economic value. Both practices have exclusive economic appeal. They undermine non-economic and other cultural values inherent in the relationship the indigenous and local communities have with the natural world. Those values are an integral part of a people’s cultural identity. There is a strong need for a legal framework to address the inequities in the exchange and use of genetic resources. The same applies to the imperative for the protection of traditional knowledge. This book argues that what must be weighed and factored in to the mediating policy initiatives to address these concerns is the price at which the desired changes are attained. This raises a fundamental problem, which I highlight by posing a crucial question. Is it possible that in pursuing the supposed attraction of Western IPRs, we compromise the survival and critical elements of the lifestyle of indigenous and local communities? This may be so, given that indigenous lifestyle is a comprehensive package, with developed independent cultures of health care. Often, such a culture represents an alternative to non-indigenous approaches to health care. It is only when we survey the nature of TKPT that the appropriateness of mainstream IPRs to that form of traditional knowledge can be evaluated. Such scrutiny is critical if IP is to be appraised in the light of the objectives that have been claimed on its behalf. The nature of an appropriate reward, including the form of protection for traditional knowledge, has become very challenging. The concept of IPRs, despite its shortcomings, enjoys considerable attention in the search for a suitable mechanism for rewarding traditional knowledge. As a potential device to recognize and reward the contributions of indigenous peoples and their traditional knowledge in pharmacology, medicine, food, and biodiversity conservation, among others, IPRs will continue to be discussed in these regards. In some respect, this book is a contribution to the ongoing debate about whether IP, as a concept, can be effectively applied to traditional knowledge. The book is specific in extending the discussion to the converging realm of plant biodiversity and traditional medicine within the contemporary effort to integrate the indigenous question in the global decision-making process. The emerging international legal regime on the converging subjects of biological diversity, IPRs, and traditional knowledge are articulated at a framework level only. National and regional legal regimes on the implementation of the provisions of article 15 of the CBD on access and

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benefit sharing are emerging. Those regimes largely focus on the economic and reward aspects of genetic resources transfer. A more problematic issue, not completely separate from article 15, is how to implement article 8(j) and other related provisions of the CBD. The emphasis in article 8(j) is on the preservation of the cultural integrity of indigenous knowledge. The Conference of Parties (COP) – the governing body of the Convention – has devoted attention to how article 8(j) could be implemented. Working with the World Intellectual Property Organization (WIPO) (through the new Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore [IGC-GRTKF]), the COP, via its Working Group on article 8(j), has launched an inquiry into how best to protect the cultural integrity of indigenous and local peoples and their knowledge. Although both institutions (CBD and WIPO) encourage a broad-based inquiry, there is a discernible trend in their efforts. They have both endorsed the need to investigate the customary regimes and protocols for the protection of knowledge in indigenous and local communities. This is a step in the right direction. Within indigenous communities, there are customary regimes and protocols for the protection of knowledge yet to be explored. Rooted in indigenous norms, such regimes are less likely to present the problems associated with mainstream IP. I take the view that national governments should seize the opportunity provided by the framework nature of international initiatives on access to genetic resources such as the CBD. To this end, they should contribute to fleshing out the details of the regimes in a manner that will meet indigenous yearnings and aspirations. National governments are in a position to promote and accord legal or official cover to protective schemes that are rooted in local or indigenous traditions and cultures. In virtually all cultures, there are customary regimes for the protection of knowledge.34 Those have not been adequately harnessed in the access regimes after the CBD. Instead, the regimes are inclined to foster a Western IP hegemony that is ill suited to the protection and rewarding of local knowledge. This is because of the emphasis on article 15 of the CBD without any concrete attempt to reconcile its provisions with article 8(j). Suggesting a more persuasive alternative to IPRs is a desirable but unnecessary hurdle to scale in order to refocus attention on reevaluating the IP option. It is not necessary because, in principle, I do not reject the idea of applying IP to local knowledge. After all, indigenous people have knowledge protection mechanisms even if they are not called IP.

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International Law and Indigenous Knowledge

Efforts in the direction of offering alternatives to IP are not completely detached from the general conceptual paradigm of conventional IPRs. For instance, the concept of traditional resources rights (TRR), as a quest for obtaining legal status for traditional knowledge practices, does not disclaim the role of existing IP regimes in that effort. There are sui generis propositions that can serve indigenous interests, albeit in the limited realm of commercializing indigenous artistic works. For instance, the idea of a special trademark or patent practice that recognizes indigenous role, origin, or association with a particular product, patent, or process, otherwise called indications of origin, falls within this category. The idea of applying IP to traditional knowledge enjoys a great deal of prominence. Hence, attempts to underscore its inadequacies may not be popular undertakings. Nevertheless, it is by focusing on aspects of such lapses that this book partly distinguishes itself. If IPRs are presented as capable of protecting the interests of traditional knowledge and its practitioners, they should be taken to task at the slightest suspicion that they may yield an opposite outcome. With regard to the practice of TKPT by indigenous peoples, and members of the local community, this book examines the impediment posed by IPRs, especially patents, which may cause them to threaten, rather than fulfil, indigenous expectations. Traditional Knowledge of Plant-Based Therapy and the Sociocultural Imperative It is necessary to recognize the context and essential detail of traditional medicine. That would include understanding the cultural conceptions of health, healing, and associated belief systems among traditional people. The IP debate has ignored or downplayed those considerations; this book draws special attention to them. I contend that national/local governments are well placed to recognize and project the sociocultural imperative of traditional knowledge systems. According to Mohammed Khalil, developing countries should spearhead the recognition of the rights of indigenous communities through the extension of legal cover to domestic knowledge.35 Extending legal cover to domestic knowledge within developing countries in the globalization era will be difficult. That task has become more challenging in the wake of the ongoing project of incorporating resources into one global economic system. In addition, the increased

General Introduction and Overview

13

interpenetration of peoples, cultures, and societies around the world and the reverberation of ideas from diverse knowledge forms make it difficult to draw a line of demarcation across knowledge systems. The TRIPS Agreement, which has established a global benchmark of IP protection, is evidence of globalization in the IP arena. Under that regime, to some degree, the ability of national governments to determine appropriate protection for local knowledge is curtailed. Yet the agreement does not obliterate the territorial nature of IPRs, or the right of nations to recognize and integrate local regimes for the protection of knowledge in their national laws. The difficulty inherent in the bid to provide legal cover for local knowledge may be surmountable. I argue that domestic or regional legal and policy regimes should be at the forefront in championing the imperative for extending legal cover to traditional knowledge. Such initiative has to precede the prospects of similar ones at the international level in order to avoid the syndrome of development from above. A legal cover will build on indigenous knowledge protection regimes. In many instances, such regimes have the likeness of IPRs and have been less appropriately called indigenous versions of IP. Some caveats as to the scope of this book and clarification of some of the terms employed here will be helpful at this point. First, this book is not about indigenous peoples as such, nor is it a treatise on knowledge or traditional medicine. Further, it is not a dedicated exposition on biological diversity conservation and IPRs in their entire gamut. It does not explore those concepts in isolation. Drawing from studies on the intersections of these disciplines in a convergent analysis, this book is chiefly concerned with how TKPT is implicated within that intersection. Second, this book is cognizant of the tendency to lump all indigenous and Western cultures and knowledge systems into uniform but separate categories. Similarly, I am also conscious of the fact that the give-and-take in knowledge traffic,36 including the curious reverberations of ideas around the world, does not support an isolated or ‘purist knowledge’ that such qualifiers as ‘traditional,’ ‘indigenous,’ ‘local,’ ‘Western,’ and so on suggest. However, even though no such purist assumption is made here, what is acknowledged is the existence of plurality in ways of knowing, be they Western or non-Western. In the same manner, what is emphasized is that ‘the rest’ is not the same as the West yet, and may never be.37 A number of pivotal concepts are employed in this book. They include ‘traditional/indigenous knowledge,’ ‘traditional knowledge of

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International Law and Indigenous Knowledge

plant-based therapy,’ ‘indigenous people/local communities,’ ‘traditional medicine,’ and ‘intellectual property rights’ as well as (conservation of) ‘biological diversity.’ None of these concepts is free of ambiguity. In addition to the attempt in chapter 2 to examine the concept of biodiversity and IPRs, clarification of the scope and how the rest of these concepts are employed in this book is helpful at the onset. Traditional and Western Scientific Knowledge Systems The distinction between traditional and Western scientific knowledge does not in any way suggest that the West has no indigenous or ‘folk’ knowledge of its own. It is indeed erroneous to assume that science and technology are the indigenous knowledge of the West. That assumption flies in the face of historical fact. What is today recognized ‘as scientific knowledge of the natural world was ... constituted during the eighteenth and nineteenth centuries’ in a way that absorbed some preexisting European local folk knowledge and practices. Those that were not absorbable became extinct. European folk practices, such as bee keeping, truffle hunting, goose-rearing, and the knowledge of pigeon fanciers, helped in no small measure in the evolution of contemporary scientific knowledge. In recent times, European folk culture continues to be ‘reified, reinvented, celebrated and commoditized.’38 Modern science and technology are to a large degree offshoots of folk knowledge. Delineating knowledge systems is a contentious exercise. It is more so when the focus is on the broad and amorphous matrixes of Western and non-Western, not to mention scientific and non-scientific. However, such focus serves the limited but functional purpose of isolating the competing ideological and conceptual references in which ‘knowledge’ is deployed in this book. The notion of knowledge is a contested one, whether investigated in sociological, philosophical, jurisprudential, or historical terms. For instance, the term ‘scientific knowledge’ is ambiguous for the simple reason, among others, that the word ‘science’ is often used as a synonym for knowledge.39 Science is generally considered a way of knowing. Arguably, every knowledge system with a systematic and formulated basis is scientific. Evaluating indigenous or traditional knowledge in comparison to Western science tends to presuppose an ‘overarching comparator’ in the form of ‘universal reason’ or ‘science,’ which is always ontologically privileged.40 In the same vein, such comparison places Western science

General Introduction and Overview

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at an advantage as a point of reference. In the observation of some scholars, such a tendency ignores [t]he fact that all systems are culture-bound and thereby excluding western knowledge from analysis … By examining local knowledge in relation to scientific disciplinary distinctions [‘minor set of ethno-disciplines’] they are pointing out how this can lead to the construction of certain aspects of local knowledge as important, while excluding or ignoring other areas and possibilities of knowledge which do not fall within the selective criteria ... In this depleted vision, IK [indigenous knowledge] becomes a major concept within development discourse, a convenient abstraction, consisting of bite-sized chunks of information that can be slotted into western paradigms, fragmented and decontextualized, a kind of quick fix if not a panacea.41

Some indigenous scholars insist that there is no satisfactory definition of indigenous knowledge.42 The idea of definition, they argue, is a Western epistemological approach that tends to fragment concepts and render them abstract, even those it cannot explain. Despite their inadequacies, definitions may be indispensable, at least as preliminary means of engagement across epistemic boundaries. Ironically, like its nonWestern counterpart, the character of Western scientific knowledge is not completely articulated. For instance, it is observed that ‘despite the common term “scientific method,” no universal scientific method exists which distinguishes science from non-science.’43 For reasons of interchange in the cross-cultural movement of peoples and the flow of information and knowledge, talking about knowledge in purist or qualified terms may not be quite appropriate. However, the claim that indigenous knowledge and Western science are epistemologically equivalent and equal may not be true. In the observation of a group of anthropologists, we inhabit a world of ‘trans-cultural discourse’44 where a baseline of universal reason prevails in all traditions. Such a baseline ‘is driven by shared human economic needs and cognitive processes … [however] they are activated and expressed in different cultural contexts.’45 The comparative differences in approach that are discernible in the two categories of knowledge appear to be what gives them a distinct identity of a kind, albeit for the limited purpose of characterization. But those differences do not justify the exclusive appropriation of the ‘scien-

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International Law and Indigenous Knowledge

tific’ label by one knowledge system only. The differences are founded on philosophical demarcations between Western and non-Western sociocultural paradigms and world views. Symbolically, they are indicative of pluralism in the ways of knowing. From the wealth of writings that theorize on the nature of traditional knowledge and Western science, more than ten correlative features of indigenous and Western scientific ‘knowledges’ have been identified.46 The following represent, in a nutshell, some features of traditional knowledge in comparison with Western science: • Traditional knowledge is in many respects transmitted orally (e.g., through stories and legends) and/or by imitation and demonstration. Writing is the dominant means employed by Western science. • Traditional knowledge is learned through observation, practical engagement, or hands-on experience gained by trial and error. Western science is taught and learned often but not always in an abstract context. • Traditional knowledge sustains an understanding that all parts of the natural world, including elements of matter like earth, air, fire, water, and other inanimate things, have life force and are infused with spirit. Western science maintains a complete distinction between animate and inanimate objects. • Traditional knowledge does not necessarily subordinate all other life forms to humankind. Thus, all life forms including humans have kinship relations and are interdependent. Modern Western science supports a cultural context in which mankind can control and legitimately exploit other life forms. • Traditional knowledge is holistic and integrative in character. It is based on a philosophy of a broad cultural tradition that perceives the interrelatedness of all phenomena in the natural and supernatural world. Western science is characteristically reductionist and fragmentary, deliberately breaking ‘data’ into little elements in order to gain insight into complex phenomena. • Traditional knowledge is intuitive. It emphasizes emotional involvement and subjective certainty of understanding. Western science is abstract and adopts a more analytical approach in which the observer is separated from the observed. It also emphasizes replication of measurements for determination of result. • Traditional knowledge is qualitative and is based on sustained contact with, and observations of, the natural environment and

General Introduction and Overview

•

•

•

•

•

17

phenomena. Western science is quantitative and emphasizes mathematical representations. Traditional knowledge is ‘performance knowledge.’47 Resource users generate data that reflect their response to the needs of the moment. Thus, such data are more inclusive. Western science generates data through a limited category of specialized persons or researchers, the scientists. Western scientists are inclined to be selective and deliberate in data collection. They often anticipate their research results. Traditional knowledge information is generated from long and rigorous observations emanating from a specific locality (i.e., diachronic data). For Western science, information arises from limited observation and claims or conclusions are made of a universal nature (i.e., synchronic data). Traditional knowledge systems are founded on a sociocultural milieu that sustains a belief in complex spiritual and social relations among all life forms. Here, ‘[r]elations are based on reciprocity and obligations toward both community members and other life-forms and communal resource-management institutions are based on shared knowledge and meaning.’48 Western science is formally institutionalized, hierarchically organized, and vertically compartmentalized. Here, the environment is fragmented into discrete components and separately managed. Traditional knowledge explains natural phenomena on the premises of cumulative and collective experiences, often with spiritual undertones. Phenomena are checked, validated and revised on regular or seasonal basis. Thus, in addition to the aspects of trial and error, traditional knowledge ‘tends to be empirical and empirico-hypothetical knowledge’49 as opposed to strictly theoretical. Western science resorts to a methodology that creates, tests, and verifies hypotheses by which theories and general laws are formulated as justifications for phenomena. Traditional knowledge is created in the context of everyday production and informally shared to a much greater degree than other forms of knowledge, including Western science. Its distribution is segmentary or socially differentiated within population by kinship, gender, age, experience, possession of ritual power, and political authority.50 Western science’s processes and products tend to be readily privatized and may not be as accessible and are not readily shared as traditional knowledge.

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International Law and Indigenous Knowledge

These delineations of indigenous and Western knowledge allude to their underlying ideological differences as well as to their complementary features.51 The distinctions reflect a synthesis of conventional anthropological studies of indigenous knowledge systems.52 Part of their attraction is the emphasis on traditional ecological knowledge in which biodiversity is central. The foregoing attempt at demarcation does not sufficiently highlight the spiritual, religio-cultural, and beliefs systems implicated in traditional knowledge. Nevertheless, because of the often specific and highly localized nature of the latter, incorporating those features may not advance the purpose of broad comparison that the above outline is concerned about. Such delineations can amount to generalizations, or at best a loose or ‘crude checklist of [contestable] characteristics.’53 They should not be taken to undermine the fact that ‘[t]he different modes of thinking, transmitting, and expressing knowledge are not mutually exclusive.’54 And, ‘[n]either TEK [traditional ecological knowledge] nor western science should be judged for its worth according to a rigid set of generalizations or a static image of the past … The knowledge system of any culture is constantly changing through assimilation of “outside” knowledge and synthesis and hybridization with existing knowledge.’55 According to Arun Agrawal, many scholars are of the view that no simple or universal criterion can be deployed to isolate indigenous from Western scientific knowledge. Distinguishing between scientific and indigenous knowledge ‘on the basis of method, epistemology, context-dependence or content’ is intellectually unproductive and less persuasive.56 Although the foregoing observation may be somewhat an exaggeration, the point about the fluidity of knowledge categories should not be lost. Science as a Site of Contest Despite the above conceptual delineation, virtually all the fundamental attributes or claims of Western science, such as its perception of truth, logic, universality, rationality, objectivity, and application of criteria, have been challenged by studies in the history, sociology, and philosophy of science. The neutrality of science is contested, just as are most other bases on which so-called bad science is isolated from good science.57 Furthermore, Western science serves as an instrument for policy formulation. This is otherwise referred to as ‘mandated science.’ Man-

General Introduction and Overview

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dated science erodes the notion of science as ‘value-neutral’ or devoid of political considerations. Within the rubric of mandated science, scientists are often asked ‘to translate science into recommendations for policy, and are thus often required to deal with moral [and legal] questions’ of ‘significant socio-political impact.’58 As a synonym for knowledge, science can be conceptualized in different subjective ways. Its cultural relativity is no longer at issue. Thus, ‘[i]n other words, what is considered science is dependent on the culture/worldview/paradigm of the definer.’59 Kant categorized knowledge into a triple construct of appearances, reality, and theory. For him, ‘appearances of the world are deeply conditioned by human [or individual] sensory and intellectual apparatus.’60 The ‘Western,’ for instance, has been described as a local tradition, which has been spread worldwide through intellectual colonization.61 Because we can no longer take the objectivity of science for granted, we can equally not take for granted its claim to universality. That is not to argue, however, that those attributes of science should be dismissed either. Thomas Kuhn in his early seminal work62 argues that Western science is not as objective or open as has been claimed. Science, Kuhn asserts, is built on shifting paradigms or, even more appropriately, on shifting goals that could not be completely devoid of social and economic mediations as well as the available ‘knowledge’/information at a given point in time. For Little Bear, Kuhn’s ‘paradigm is the whole way of working, thinking, communicating and perceiving with the mind … [including] tacit infrastructures, which are mostly unconscious, pervading the work and thoughts of a community.’63 For Peter Drahos, ‘[t]he fate of scientific theories is heavily affected by cultural and social factors.’64 Sandra Harding’s summation of the result of social study of the sciences is that ‘[a]ll scientific knowledge is always, in every respect, socially situated.’65 According to her, it is virtually impossible to find observers of science who will defend the view that there is such a thing as ‘pure science’ that can usefully be distinguished from its social origins, meanings, institutions, practices, and so on. Thus, in the view of Harding, a proper understanding of science is one that sees it as a social and cultural process.66 For some, it is wrong to limit the tag of ‘scientists’ to the sociological category of those formally trained in Western science and technology or their imitating institutions. Science is perceived as ways of knowing, and technology as ways of doing. Properly understood, science and technology should be seen as constituting a plurality associated with

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International Law and Indigenous Knowledge

various cultures.67 Therefore, what qualifies a body of knowledge as science may not exclusively be the knowledge content any more than its orthodox or procedural character. Such factors as the variegated cultural, historical, social, legal, economic, and political factors of the knowledge holders and their local environments are relevant. Western science and epistemology have consciously or unconsciously been in the business of devaluation and delegitimization of non-Western forms of knowing. They do this within a monocultural framework at the expense of the diversity associated with the world’s indigenous and local cultures. Described historically in negative terms, such as ‘primitive,’ ‘backward,’ ‘savage,’ ‘rural,’ ‘unscientific,’ and so on, nonWestern knowledge is said to lack the universality ascribed to Western science. For instance, Stephen Brush comments that ‘indigenous knowledge is culture-specific, whereas formal [Western scientific] knowledge is decultured’!68 The claim that Western scientific knowledge is decultured does not derive support from studies on the sociology of science. Traditional or indigenous knowledge of members of local communities is central to the postmodern retrieval or salvage mission for ‘exotic peoples’ and their ways of life. After an era of denial and devaluation, an awakening is now evident in the direction of local knowledge. However, the tendency to use the so-called Western scientific or formal knowledge as a yardstick to validate local knowledge has its drawbacks. Such an approach is inclined to sideline non-Western ways of knowing. Using the patent regime in relation to TKPT, this book highlights how Western science, in alliance with conventional IP regimes, discriminates against indigenous knowledge forms. Indigenous/Traditional Knowledge This book does not make a distinction between traditional and indigenous knowledge. Such a distinction is superficial. Here, the terms are used interchangeably, even though the preference is frequently for ‘traditional knowledge’ for reasons that will be clearer shortly. Politicohistorical, general social science, and legal discourses adopt a limited conception of indigeneity that is denounced in this book. For instance, under international law, indigenous people are narrowly defined. International law has yet to arrive at a precise characterization of indigenous peoples that fits all parts of the world. It has been rightly observed that ‘measuring indigenousness is not an exact science.’69 Thus, a definition that encapsulates the relevant historical experiences of the peoples where the subject of indigeneity is implicated remains elusive.

General Introduction and Overview

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Three definitions of indigenous people help to situate the often narrow and broad swings between which international law vacillates. James Anaya refers to indigenous people as ‘the living descendants of preinvasion inhabitants of lands now dominated by others … [They] are cultural distinct groups that find themselves engulfed by other settler societies born of forces of empire and conquest.’70 There are two problems with Anaya’s approach. This definition does not seem to account for situations where ‘living descendants of pre-invasion inhabitants’ are in the majority, like indigenous Fijians, Bolivians, and Mexicans.71 It does not shed light on what is meant by ‘domination.’ For instance, numerical advantage does not necessarily translate to political or economic domination. The International Labour Convention No. 169 of 198972 defines indigenous peoples as descendants of populations that inhabited a country at the time of conquest, colonization, and the establishment of extant state borders. A key criterion under that convention is that such a category of peoples must retain some or all of their sociocultural and economic institutions. This approach makes conquest and colonization almost exclusive criteria for indegeneity. Those are not sufficient. In many independent countries in Africa and elsewhere, there are many marginalized indigenous nationalities whose plight is not necessarily a direct consequence of conquest and colonization. In addition, requiring the retention of sociocultural, economic, and institutional identity means that indigenous peoples and persons whose institutional bearing and identity were disrupted by colonialism and conquest are excluded from the indigenous fold for no fault of theirs. Martinez Cobo, the first United Nations Special Rapporteur on the Issue of Discrimination against Indigenous Peoples, suggests that [i]ndigenous communities, peoples and nations are those which having a historical continuity with pre-invasion, and pre-colonial societies that developed in their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sections of society and are determined to preserve, develop and transmit to future generations their ancestral territories, as the basis of their colonial experience as peoples in accordance with their own cultural patterns, social institutions and legal systems.73

Like Anaya’s attempt, Cobo’s definition is not completely satisfactory.74 It does not seem to include indigenous peoples in colonial out-

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International Law and Indigenous Knowledge

posts where settler withdrawal or retreat was expressed as political independence, as was the case in most of Africa and Asia. From the definitions above, it would appear that when a people currently constitute the ‘dominant’ section of their society (however that may be defined), irrespective of their link with pre-invasion and pre-colonial societies, they could not be considered indigenous. It is not in every case that indigenous peoples are minorities, dominated by others. Also, European colonization and invasion may not necessarily be the exclusive criteria for indigeneity. Erica-Irene Daes is of the view that an inclusive and precise definition capable of accommodating the peculiarity of indigenous people and their experiences globally is not practical. De Koning rightly observes that attempts to define the term ‘indigenous people’ often results in essentializing and marginalizing them, and threatens to limit the scope of international treaties dealing with their interests.75 However, definition has the advantage of enhancing legal, including human rights protection, and archiving certainty and predictability in the legal process. International law’s narrow concept of indigenous people was constructed within the discourse about aboriginal peoples of the American continents and other culturally distinctive groups.76 Most countries of Africa and Asia deny the existence of indigenous peoples within their territories. At best, they are ambiguous about it. In seeming support, Stephen Brush comments that ‘indigenous people’ is ‘a term that is best used in regions with a colonial history and that has left a predominant national culture and autochthonous cultures that coexist and compete for limited resources, especially land.’ He avers further that the term is limited to the New World and ‘is not suited to large parts of Asia and Africa where a single hybrid or creole culture (e.g. European-Native) is not dominant.’77 The term has ‘been used to refer to original primitive and aboriginal autochthonous people (usually but wrongly called American Indians) – a use restricted to the Western Hemisphere and Australia – to refer to the original people who inhabited the continents before the arrival of Europeans.’78 Clearly, the term ‘indigenous people’ is construed narrowly, albeit ambiguously, across several disciplines and particularly under international law. It still lacks precision. In the observations of Benedict Kingsbury, ‘the imprecision of the category and expanding array of groups involved in the “indigenous peoples movement” could eventually threaten this perception [of imprecision] and provoke more sustained demands for precision, such a transformation has not occurred.’79

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In this book, I argue that as narrowly construed, the term ‘indigenous people’ is not suitable to capture all the purveyors of ‘indigenous knowledge’ of biological resources. ‘Indigenous knowledge’ applies loosely to a category broader than ‘indigenous’ peoples. In contrast, Ellen and Harris declare that ‘[t]hose to whom we attribute indigenous knowledge must be indigenous peoples …’80 But they are also quick to point out that the terminological difficulties inherent ‘in saying as much uncover a veritable semantic, legal, political, and cultural minefield.’81 More than three-quarters of global bioresources are located in the gene-rich countries mainly of the South, which are home to about 75 per cent of the world’s population.82 Indigenous peoples (as narrowly construed) number between 200 and 300 million people, or about 4 per cent of the global population.83 The use of the term ‘indigenous knowledge’ may present the risk of being interpreted as an exclusive body of knowledge attributable to members of the ‘enclave territories’ or those whom Franke Wilmer prefers to call the ‘Fourth World’ – a reference to ‘indigenous nations or undecolonized nations whose political, social and economic cultural ways of life were subjected to brutalities in the name of progress or its recent incarnation, development.’84 This book adopts a wider interpretation of ‘indigenous knowledge,’ making it applicable to both the indigenous peoples of the ‘enclave territories’ and, more important, to members of the so-called local communities85 or non-Western cultures, be they indigenous in the strict sense or not. That ambit includes all the natural custodians of most of the earth’s biodiversity treasure. In lending support to the futility of the distinction between traditional and indigenous knowledge, Michael Blakeney rightly notes that in the debate over the protection of traditional knowledge, the implied beneficiaries are traditional peoples, who are invariably referred to as indigenous people. In his view, the salient issue related to the delineation of the content of traditional knowledge is the groups of communities who are entitled to make claims for those rights accruing to that knowledge.86 The inclusive conceptualization of indigenous knowledge is further supported by the following observation: But the word indigenous is also used in its broader connotation, meaning native, or original; this covers much wider canvas, including all those people who were native to the lands where indigenous knowledge as contrasted to modern technological knowledge originated. In this sense

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International Law and Indigenous Knowledge the reference should no longer be simply to the narrow groups of aboriginal tribes. I feel that if we are to consider the IPRs as also applying to indigenous knowledge, we must use the term in its broader connotation. Moreover, the broader meaning also covers aboriginal tribes, and therefore should preferably be used in discussions that center upon contrasting earlier knowledge with modern knowledge for which alone the system of IPR is applicable.87

The term ‘traditional knowledge’ is persuasive chiefly because of its non-limiting nature and its deflation of the controversy over indigeneity. A group of anthropologists have articulated the comparative advantage of the term over other competing ones along the following lines.88 They argue that in the light of its conflicting, ambiguous, and strong moral load, ‘indigenous’ is not a helpful way to describe a particular kind of knowledge. For them, the same argument can be made of ‘native’ and ‘aboriginal.’ ‘Tribal’ is perceived as too restricted and capable of confusing a political condition with a distinct kind of knowledge. Yet ‘folk’ and tradition are seen as less morally loaded, even though ‘folk’ still has rather conservative connotations and is unacceptable in several quarters. Certainly, ‘local,’ to its credit, is neutral, but in addition to being potentially euphemistic, it fails to indicate satisfactorily the qualitative differences in the character of knowledge under reference. Notwithstanding its implications of anachronism and long-term cultural stasis, ‘traditional’ rates higher in the credibility scale and is among the most common ways of describing a particular kind of anthropological order. Like the other terms, it is said to derive its meanings from variations on the modernity-traditional dualism that is, however, disclaimed in the context of its usage in this book. I share the above arguments against other rival terms. However, I do not anchor my preference for and use of ‘traditional’ on its anthropological significance, nor on the basis of the modernity-dualism dichotomy that it connotes. My preference is based on its depiction or characterization of the ‘other’ in contradistinction to the dominant culture. It facilitates a less divisive reference to the world’s disempowered peoples who share a common experience and for whom the knowledge question provides a rallying point for survival. It is not as if ‘traditional’ conveys fully all the nuances inherent in that distinction; it is a reluctant candidate in the absence of better qualified others. Tapping into these distinctions to some degree, the WIPO maps out the relationship between indigenous knowledge and traditional knowl-

General Introduction and Overview

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edge. In the draft of its Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998–1999), WIPO comments that indigenous knowledge fits into the traditional category, ‘but traditional knowledge is not necessarily indigenous. That is to say, indigenous knowledge is traditional knowledge, but not all traditional knowledge is indigenous.’89 WIPO’s final Report on the Fact-Finding Missions under its Global Intellectual Property Issues (GIPI) program published in April 2001 comments in part that ‘“[i]ndigenous knowledge” being the traditional knowledge of indigenous peoples is also a subset of traditional knowledge.’90 While using the term ‘traditional knowledge,’ I reject the notion that such knowledge is antiquated, static, and inferior to Western science. On the contrary, traditional knowledge is an aspect of the cultural dynamic of its practitioners. It is an innovative and responsive living body of knowledge. Furthermore, the subjectivity associated with epistemic realms does not warrant a comparison based in the inferior/ superior dichotomy. The efficacy of traditional knowledge is borne out in part by its appropriation by modern biomedical and pharmacological practices. Few disclaimers could be as to the point as those of the Four Directions Council, a Canadian First Nations body, when it observed in its brief to the Convention on Biological Diversity Secretariat that ‘[w]hat is “traditional” about traditional knowledge is not its antiquity but the way it is acquired and used. In other words, the social process of learning and acquiring what is unique to each indigenous group lies at the heart of its “traditionality.” Much of this knowledge is actually quite new, but it has a social meaning and legal character, entirely unlike the knowledge indigenous people acquire from settlers and industrialized societies.’91 For ideological reasons there is characteristic reluctance, especially among indigenous scholars,92 to define traditional or indigenous knowledge. Yet definitions of the concept abound.93 Howard Mann offers an attractive definition of indigenous knowledge endorsed in this book. Not only does Mann’s definition escape the unnecessary dichotomy between indigenous and traditional knowledge, but it also maintains a certain degree of neutrality in relation to that putative divide. Again, it eschews the problem of trying to enumerate the elements of that knowledge. Furthermore, it appreciates the dynamic character of indigenous knowledge. According to Mann, ‘Indigenous knowledge as a concept concerns information, understanding, and knowledge that reflect symbiotic relationships between individuals, communities, generations, the

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International Law and Indigenous Knowledge

physical environment, and other living creatures, and the spiritual relationships of a people. Indigenous knowledge evolves as ecosystems and other factors change but remains grounded in the more enduring aspects of identity, culture, generations and spirituality.’94 Mann’s attempt excludes reference to ‘practices’ while seemingly placing disproportionate emphasis on information. It is, however, tenable that ‘associated practices’ is incorporated in that definition. In sum, the concept of traditional or indigenous knowledge adopted in this book recognizes that • traditional knowledge (TK) is a complex and inexhaustive category • the holism of indigenous cosmology does not admit of simplistic fragmentation • TK is culture-specific in origin but not necessarily so in its application and validity • it is innovative or dynamic, penetrable and penetrating and is not bereft of ‘scientific’ character • its definition is elusive, fluid, and capable of changing • for the elastic nature of the concept, not for want of analytical rigour, a working definition is favoured It is prudent to define traditional knowledge with regard to the cultural context of its holders. Ideally, none other than the practitioners can claim to have a better understanding of that body of knowledge. WIPO considers traditional knowledge as a working term only95 in much the same way as the definition of indigenous peoples.96 It acknowledges the right of indigenous groups, local communities, and other TK holders to decide what constitutes their knowledge forms, innovations, cultures, practices, and the ways in which they ought to be defined.97 In my view, most, if not all, of these cautions are factored into Mann’s definition above. Traditional Knowledge of Plant-Based Therapy This book is concerned mainly with a specific form of traditional knowledge, here articulated as traditional knowledge of plant-based therapy (TKPT) interchangeably referred to as traditional medicine. Generally, two types of plant resources and related indigenous or traditional knowledge are distinguished in the discourse about IPRs. They are (a) crop germplasm or farmers’ knowledge of plants, and (b) products derived

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from plants and knowledge about plants and products.98 The notion of TKPT articulated in this book falls under the second category. It focuses on the use of plant genetic resources for medicinal or curative purposes as opposed to agriculture or food. Plant biodiversity is the pivot of traditional medicinal practices. However, this book recognizes that there is a faint border between food and medicine in virtually all cultures. In the observations of a Native American scholar, ‘[T]he food upon which indigenous people around the world depended for life was also their medicine … [M]any foods were components of medical systems based on natural properties of plants and animals.’99 Indeed, many shamans are plant breeders in their own right.100 Therefore, the distinction between the use of genetic resources for medicinal or curative purposes as opposed to agriculture or food is perhaps artificial. It is made in this book superficially, not on any orthodox basis. Farming and traditional medicine are closely allied in the life of indigenous peoples. This is evident in the renewed practice of cultivation of medicinal plant, to supplement supply from ‘wild’ flora. In contemporary times, a number of factors have combined to force a return to the ancient practice of cultivation and domestication of medicinal plants by local communities.101 These factors include astronomical decline in global biodiversity, aided in part by the culture of consumerism, population pressure on land, and the dwindling populations of practitioners of traditional knowledge. In addition, the increasing popularity of traditional medicine and the non-affordability of Western biomedical alternatives result in the need for domestication of medicinal plants. In Rwanda and Indonesia, respectively, the practice of what has been described as ‘backyard cultivation’ of two popular herbs, Tetradenia riparia102 and Kayu putih103 illustrates this point. The practice of local or industrial cultivation of medicinal plants is a positive step in plant biodiversity conservation. The essential fact promoted by the Crucible Group that ‘farmer’s fields and forests are laboratories, farmers and healers are researchers, every season is an experiment’104 underscores the interwoven and sometimes overlapping nature of traditional medicinal and farmer knowledge of plant and plant germplasm. Steven King and his colleagues Thomas Carlson and Karty Moran describe home gardens as ‘“research and development” laboratories where different plants are experimented with and adapted for food, fodder, fiber, medicines, religion, ceremonial and other subsistent uses.’105 Nonetheless, as construed in this book, TKPT or traditional medicine

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emphasizes healing practices, including belief systems, that are usually associated with medicinal knowledge in the use of plant resources. Therapeutic or medicinal knowledge is therefore employed here in the limited milieu of plant resources or plant biodiversity. In a sense, following Charles Good’s definition, TKPT is ‘[t]he total body of knowledge, techniques, for the preparation and use of substances, measures and practices [including belief systems] in use whether explicable [to Western science] or not that are based on personal [or communal] experience … and observation handed down [or evolving] from generation to generation either verbally or in writing, and are used for diagnosis, prevention, or elimination of imbalances in physical or social well being.’106 The notion of TKPT incorporates associated practices, not merely the knowledge of therapeutic properties. Oftentimes what is construed and appropriated by law and modern biomedicine and pharmacology is the knowledge and aspects of the healing properties of plant resources. Those are customarily expressed in the scientific jargon as ‘active agents,’ ‘bioactive compounds,’ and so on. Generally, no regard is given to the cultural practices or social contexts in which the knowledge and/or processes are generated and employed. Interestingly, the knowledge systems derive their essence in indigenous cosmology from those contexts. Applicability of Intellectual Property Rights to Traditional Knowledge Much effort has been concentrated on how indigenous and local peoples could jump into the moving train of IP and get incorporated into a global economy. But concerns about how traditional practices of peoples that are filtered away from an epistemic regime based largely on commodification of knowledge for the servicing of the market economy are yet to attract serious consideration. Two broad categories of opinion are identified in relation to the suitability of IPRs to traditional knowledge, or vice versa. Some argue that the dominant forms of IP are simply not suitable to traditional knowledge. For instance, Walter Reid,107 Stephen Brush, and Doreen Stabinsky argue that Western IPRs are ill suited to the protection of traditional knowledge. Specifically, according to the last two, as a ‘tool of capitalism,’ ‘[i]ntellectual property’s positive benefits, however must be weighed against the possibility that it is unsuited for cultural knowledge … Placing the knowledge and biological resources of farmers and herbalists behind a screen of IP

General Introduction and Overview

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contradicts their historic status as common heritage held in trust for public good … There is, therefore, a pressing need to weigh the allure of the tools of capitalism against the potential harm in the arena that involves indigenous peoples, peasants.’108 A second line of the argument goes beyond the suitability question and makes a case for application of IPRs to traditional knowledge. This view acknowledges the constraints of Western IPRs to traditional knowledge. However, it holds that the historical malleability and instrumentalism of the IPRs system enable it to accommodate traditional knowledge. Ikechi Mgbeoji argues that the historical malleability of the patent regime is one reason that ‘we must mould and expand the existing [IP] regime to the needs of indigenous peoples.’109 This argument appears to be largely concerned about economic reward attaching to IPRs. It gives little consideration to the epistemological conflicts in the application of elements of mainstream IPRs to indigenous knowledge. The case deriving from the malleability of the IP system gives support to the sui generis option, which is open-ended, seeking to create or evolve a special IP or IP-like regime for traditional knowledge. It is expressed in diverse proposals or formulations. International legal regimes on the subject of biodiversity, traditional knowledge, and IPRs now endorse this idea of a hybrid or sui generis IP regime.110 I take the view that a sui generis regime does not necessarily have to be patterned after the mainstream IP framework. To insist otherwise would be to subject traditional knowledge to the apron strings of the dominant epistemology behind that framework and to a forced epistemological assimilation. On the fringe of the divide are those who argue for a better understanding of traditional knowledge in its broader epistemological framework. A readiness to understand IPRs from the indigenous viewpoint assures faster progress in advancing the IP debate to its desired objective.111 Yet some prefer to attack the act of intervention through the IP mechanism in the context of the relationship between power elites and indigenous communities in the gene-rich countries. Consequently, they argue that unequal power relations ensure that members of indigenous and local communities are unlikely to benefit from conventional IPRs. The power elites are in an economic and political position to exploit the benefits of IPRs, to the exclusion of indigenous peoples. In addition, lack of a necessary identity of purpose between national agencies or governments and indigenous peoples in those countries is the principal basis of the scepticism.112 Michael Dove, echoing the sentiments of the

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sceptics, notes that the historical prejudice and discrimination that characterize dealings with indigenous peoples and ethnic minorities suggest that the benefits from intellectual property protection for biological resources and indigenous knowledge will elude these peoples.113 One other major feature of traditional knowledge, which some believe renders it unsuited to IP, relates to its presumed status as communal or collective knowledge. Traditional knowledge is usually associated with family, clan, kinship, and communal or other social units. This reservation is quite apart from other concerns, among them the epistemological and holistic complexity of traditional knowledge and the problem of unequal power relations. Another major concern is the question of the doubtful legal status of indigenous and local communities because of their putative lack of legal personality. The familiar argument is that the community or segments thereof hold traditional knowledge collectively. In addition, the view is rife that biological resources are within the domain of the ‘commons.’ Since IPRs essentially involve turning public goods into private property, the argument goes, this phenomenon is a high-risk method for societies and cultures that have long been subordinated.114 Most of the arguments against the suitability of traditional knowledge for IP are now less persuasive than when they were originally presented. For instance, the tendency in many of the arguments to lump all indigenous cultures together exposes some of the questionable claims attributed to traditional knowledge. Thus, it is inaccurate to say that all indigenous knowledge is communally or collectively held. A better view is that indigenous or traditional knowledge is a concept riddled with cultural dynamics and complexities. Mohammed Khalil calls attention to the not-too-obvious truth that regime structures of traditional communities in developing countries are hardly uniform. Even though the distinctions and variations that exist between different regime structures in traditional communities are neglected, their importance cannot be overstressed.115 Similarly, the notion that traditional knowledge should be treated as community property is not one to be considered in isolation. For instance, entitlements are not equal to all community members, as they do not make equal contribution in innovation and conservation. Amil K. Gupta does not support the view that denies that IPRs are suitable to traditional knowledge simply because they are considered a communal/collective type of knowledge.116 Ikechi Mgbeoji and other like-minded scholars, including Gupta and Graham Dutfield117 support the position that there is much to gain for

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31

traditional knowledge by working from within the existing IP regime. They are of the view that prevailing global economic structure demands pragmatism. This would take the form of working from the existing IP framework instead of creating an entirely new rights regime.118 Such arguments are based on the opinion that indigenous peoples and members of a local community lack the requisite economic or political clout to effect the legal and policy changes (at national and global levels) that would accommodate their interests. Chapter 5 deals with the intellectual property debate in detail. Meanwhile, suitable or not, IP has become pivotal in the search for a reward scheme and protective shield against appropriation of traditional knowledge. Rightly or wrongly, the fate of traditional knowledge, and by logical extension its practitioners, is staked, in part, at the level of our conception of IPRs. Even if IPRs seem wholly unsuitable for the preservation of local knowledge, the inquiry has shifted to how IPRs could be (re-)conceptualized to accommodate that body of knowledge. This inquiry has crystallized into the ongoing debate at different national, regional, inter-governmental, and non-governmental forums championed by the CBD and WIPO, among others, for a sui generis model for the protection of the integrity of indigenous knowledge forms.119 This book argues that a viable sui generis, or alternative knowledge protection, framework that will respect the integrity of indigenous knowledge and its peculiarity is not necessarily one based on the mainstream IP regime. It extends the exploration of an acceptable IP framework for indigenous knowledge, focusing on TKPT or traditional medicine. Its analysis is conducted against the background of the critical role of indigenous knowledge at the frontier of international law as perhaps the most topical dimension of the indigenous question in the global arena. It points to the new direction of cross-cultural conversation in the IP arena. As an incidence of its analyses, the book explores the ramifications of the IP debate on the WHO’s global public health policy as it relates to traditional therapeutic methods, examining their relationship with Western biomedicine. Because IPRs, especially the patent regime, privilege the Western scientific or biomedical model, they constitute a potential threat to the sustainability of traditional medicine and associated aspects of indigenous cultural practices and the desire for medical pluralism on a global scale. The emerging scheme for a cross-cultural approach to IPRs promises to deflate the epistemological bias inherent in Western IPRs in

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relation to traditional knowledge. The cross-cultural momentum is capable of providing the opportunity to objectively accommodate indigenous knowledge in a manner that has eluded contemporary IP discourse. In the context of traditional medicine, such a possibility will result in maximizing the therapeutic potentials existing in all cultures in order to effectively extend the frontiers of health care interventions without compromising indigenous identity, culture, world view, epistemological contributions, and broader aspirations in contemporary international law. Because this book focuses on the use of plants as a central feature of indigenous therapeutic knowledge, the next chapter underscores the ecological imperative in the indigenous world view and explores the concept of biodiversity with emphasis on plant biodiversity. The latter constitutes over 80 per cent of indigenous therapeutic experience. Chapter 2 demonstrates, in part, that plant biodiversity is a crucial component of indigenous holistic dealings with ecological forces within the broader context of indigenous world view and knowledge systems. These aim at the achievement of a holistic ecological order as the foundation of our indigenous knowledge system. Conversely, the Western industrial approach to natural resource exploitation, including plant biodiversity, is supervised by a regime of IPRs whereof market forces, as opposed to ecological imperative, are the core determinants of values. However, despite the question of the fitness of conventional IPRs to indigenous knowledge, contemporary international law appears committed to the protection of indigenous peoples. Thus, the chapter sets the stage for the subsequent exploration of complicity of IPRs in the reification and undermining of Western and indigenous ways of knowing at a time of indigenous renaissance of sorts. Overview Following this introductory chapter, the second chapter explores the phenomena of (plant) biological diversity, traditional knowledge, and Western IPRs in conceptual and convergent analyses in order to emphasize the epistemic conflict between Western and non-Western or indigenous approaches to natural resource exploitation and reward over knowledge. Whereas the one adopts an industrial model based on market forces and economic auction, and supervised by a regime of IPRs, the other is based on ecological sanctity and interconnectedness of all life forces. While Western IPRs are embroiled in a crisis of legitimacy

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regarding their status as a suitable mechanism for indigenous knowledge protection, contemporary international law is, nonetheless, committed to the protection of indigenous peoples in principle. Chapter 3 examines protection of indigenous knowledge as an aspect of the international legal regime with respect to indigenous peoples. It acknowledges the historical and contextual dichotomy between indigenous peoples of the enclave territories and their counterpart in farflung places of the Third World. Nonetheless, in the context of the discourse about knowledge, I note that the dichotomy loses its political significance to the extent that indigenous or traditional knowledge is not limited to the narrow category of peoples recognized as indigenous under international law. The chapter also examines the concept of TKPT or traditional medicine within the constitutive body of legal, quasilegal, and policy developments relating to international law on indigenous peoples. Essentially, it outlines the juridical framework for the recognition and protection of traditional medicine in international law. Chapter 4 shifts the traditional medicine discourse from the juridical to the sociocultural realm. It investigates the sociocultural, religious, and epistemic contexts of plant-based traditional therapeutic practices in relation to the biomedical therapeutic model. Drawing from diverse cultures and jurisdictions, the chapter underscores the central role of plants in indigenous therapeutic cultures. It concludes that traditional medicinal practices embody indigenous culture, knowledge, and world view in their full essence. In keeping with the holistic world view of most indigenous and so-called local communities, traditional medical heritage generally constitutes a fusion of the therapeutic and the pharmaceutical. Although traditional medicinal practices represent an alternative or independent therapeutic tradition, conventional biomedical and intellectual property regimes foist on indigenous therapy an alien standard of validation based on a narrow epistemic genre – Western science. That scientific or biomedical standard does not recognize the holistic or fused nature of indigenous therapeutic culture as well as its psychosocial foundation. Thus, in order to recognize, legitimize, and therefore validate indigenous knowledge on the Western scientific and intellectual property template, such knowledge must be rid of its cultural essence, context, and content in the indigenous experience as demonstrated in the fifth chapter. Focusing on the patent regime and TKPT, chapter 5 revisits the debate over the use of IPRs for the protection of traditional knowledge. Taking into account the sociocultural milieu in which TKPT is prac-

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tised, as explored in the preceding chapter, it posits that the contemporary arguments for the application of IPRs to traditional knowledge gloss over the epistemic gulf between TKPT and the patent regime that is based on the Western scientific and technological tradition. In support of this contention, the chapter undertakes a brief analysis of the patent regime as it applies to TKPT in a manner akin to a case study. The aim is to demonstrate that the Western intellectual property system, especially the patent regime, has the potential to erode the cultural integrity of the knowledge of indigenous and local communities because it is designed to legitimize and validate Western biomedical, pharmaceutical, and general scientific traditions. The sixth chapter explores the search for an adequate device for the protection of local knowledge. It identifies the imperative for such a mechanism to adopt a culturally oriented and sensitive approach toward the protection of local knowledge. It argues that a sui generis regime for the protection of indigenous knowledge does not necessarily have to be cast in the Western or conventional intellectual property mould. To preserve the integrity of indigenous and local communities, conserve biological diversity, and promote medical pluralism, there is a need to pay close attention to pre-existing customary norms or protocols within indigenous and local communities for the protection of knowledge. That chapter surveys the recent trends in the international momentum for the protection of local knowledge, especially in the WIPO and CBD arenas. It concludes that in the search for a sui generis framework for the protection of indigenous knowledge, national governments should be encouraged to provide legal cover to those customary protocols for the protection of knowledge that exist in indigenous and local communities. This cross-cultural approach is proposed as a framework device, requiring further elaboration in terms of details, operability, and ultimate application internationally.

2 Conceptual Perspectives on Biodiversity, Traditional Knowledge, Intellectual Property, and the Protection of Indigenous Peoples in International Law

This chapter delineates the concept of biodiversity with emphasis on plant biodiversity, which is central to traditional therapeutic practices. In it, I highlight the holistic nature of indigenous knowledge generally and underscore the importance attached to the ecological order in indigenous world views. I also explore, albeit briefly, the Western approach to natural resource exploitation as supervised by its regime of IPRs and market forces. Because of its emphasis on the economic scale of values, the Western industrial approach to natural resource exploitation and its IPRs have difficulty evaluating indigenous epistemological regimes, which are based on the sanctity of the ecological order and the interconnectedness of life forces. Ironically, in the twentieth and twenty-first centuries, international law has focused on the protection of indigenous peoples and their knowledge systems while it pursued a knowledge protection regime that is not fully responsive to the indigenous epistemic orientation. The discussions in this chapter are divided into four thematic sections. For the most part, the first three sections explore, in a conceptual manner, the convergent themes of biodiversity, traditional knowledge, and IPRs. Specifically, the first section elaborates on the phenomenon of biodiversity. The second section links the concept of biodiversity to the holistic nature of the indigenous epistemic and ecological framework. Building on the first and second sections, the third examines the notion of IPRs as the West’s primary mechanism for allocation of rights over knowledge. Based on the Western scientific and industrial approach to phenomena and market forces, IPRs have difficulty recognizing indigenous epistemological regimes that do not evaluate natural or ecological resources and humanity’s dealing with them on the basis of economic

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auction. Thus, extending IPRs as the conventional knowledge protection regime to indigenous knowledge inherently raises a legitimacy question. This has, however, not retarded progressive developments in international law in regard to the protection of indigenous peoples. Thus, the fourth section traces, from a brief historical perspective, international legal developments regarding the protection of indigenous peoples. It concludes by arguing that currently there is an international legal regime for the protection of indigenous peoples as the foundational jurisprudence for the protection of indigenous knowledge in international law. Building on this, chapter 3 elaborates on how the protection of indigenous knowledge is a component of international law on indigenous peoples. It sets the stage for subsequent analysis that uses traditional medicine or TKPT as an example of a protected indigenous knowledge form to problematize conventional intellectual property. Biodiversity Defining and Understanding the Concept ‘Biodiversity’ or biological diversity is a novel term invented by American scientist(s)1 probably as recently as 1987. The ‘father of biodiversity,’ the Harvard biologist Edward O. Wilson, credits Walter G. Rosen for introducing the term.2 Despite its attraction for scientists, international lawyers, environmental policy makers, and others, there is no accepted definition for the term.3 Dan L. Perlman and Glenn Adelson believe that it represents a complex concept that is in need of explanation, not definition.4 According to the duo, current definitions of biodiversity fail both in theory and practice in not recognizing the conceptual difficulties inherent in the term.5 Definition, they argue, is perhaps helpful only as a starting point of discussion.6 They make a case for a practical, even if narrow, definition that focuses on human conceptions of biodiversity for the purpose of solving specific conservation problems.7 Paul Wood advises that in understanding biodiversity we should distinguish the concept from biological resources so as not to obscure the former.8 Wood posits that ‘biodiversity is the source of bioresources, and therein lies its value to humanity.’9 He sees biodiversity as a concept on a higher plane of abstraction than biological resources.10 Seen from a higher plane of abstraction, biodiversity, as distinct from bioresources, has no recognized owner. Biodiversity, or the natural

Conceptual Perspectives on Biodiversity 37

environment, for that matter, knows no national or political boundaries.11 Ownership is not an idea suited to biodiversity, even though the same cannot completely be true of bioresources. For this reason, international law on biodiversity recognizes the sovereign right of nations over their biological resources.12 However, dealings with biological resources have an impact on biodiversity. Consequently, international law adopts an overtly collectivist approach to the preservation of global biodiversity.13 Therefore, instead of the principle of ‘common heritage of mankind’, issues of environmental protection, specifically biodiversity, fall within the amorphous concept of ‘common concern of mankind.’14 Here, the emphasis is not on ownership but on the duty or responsibility to protect and not to harm, abuse, or destroy. Biodiversity can then be understood as an abstraction whose real connection to humanity crystallizes partly in the ubiquitous necessities called biological resources. To that extent, biodiversity, albeit theoretically abstracted, has an empirical imperative. Biodiversity is the philosophical touchstone for the discourse on bioresources. That rubric provides a better perspective against which to evaluate the definitions of biological diversity in scientific and legal literature. Although it has been suggested that biodiversity defies definition,15 attempts to define it are not lacking. Jeffrey McNeely provides by far the most cited definition of the term. For him, ‘Biological diversity encompasses all species of plants, animals and microorganisms and the ecosystems and ecological processes of which they are parts. It is an umbrella term for the degree of nature’s variety … It is usually considered at three different levels: genetic diversity, species diversity and ecosystem diversity.’16 As an umbrella term, biodiversity includes every interaction that obtains within and between life forms. Those interactions can be abstracted and/or empirical. In endorsing McNeely’s definition, Wood observes it does not claim that biodiversity merely ‘consists of species, ecosystems and processes’; rather, ‘it encompasses them.’17 In similar vein, Cyrille de Klemm and Claire Shine describe biodiversity as that ‘which encompasses diversity of ecosystems, species and genes still found on the planet.’18 Other definitions of biodiversity do not depart substantially from the above conceptual framework, which emphasizes its multidimensional character.19 Yet, a slightly different perspective sees biodiversity in a more elastic form. It defines biodiversity as ‘a portfolio of diverse life-forms including all species whose survival is currently threatened.’20 Vague as this may appear, the use of ‘portfolio’

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is hailed because it takes biodiversity beyond collection of specimens and links it to investment in the future. Linked with the future, biodiversity captures the concept of intergenerational equity, which is described as among the principles best suited for the discussion of biodiversity conservation.21 As the most authoritative international legal instrument on global biodiversity, the CBD defines biodiversity as ‘[t]he variability among living organisms from all sources including, inter alia, terrestrial, marine, and other aquatic ecosystems and the ecological complexities of which they are part; this includes diversity within species, between species and of ecosystems.’22 A number of points from the above definitions of biodiversity are striking. For the purpose of this book, the idea that the ecosystem is central to the concept of biodiversity is noteworthy. This point is important because of the epistemological significance of ecology in nonWestern cosmology. Related to the last point, since biodiversity is acknowledged as a synonym for ‘Life on Earth,’23 definitions may undermine the different sociocultural and philosophical strands in which life and its complex relationships are perceived. Most definitions of biodiversity identify two principal sources of life forms. These are terrestrial and marine (including other aquatic) ecosystems. Within the two principal sources, many forms of life exist. For instance, animals may range from microscopic creatures, tiny worms and insects to elephants, horses, whales, lions, and even humanity. Similarly, plants range from categories such as grasses to giant oak trees. Many animals and plants exist in the terrestrial or the marine ecosystems. Some, however, exist in both. This configuration indicates the ecological complexity associated with life forms that constitute biological diversity. The Essence of Plant Biodiversity The components of biodiversity cannot exist in isolation from one another. Nonetheless, isolation is often a practical necessity when focusing on a specific component of biodiversity, i.e., a bioresource. In this book, I focus mainly on plants as both a component of biodiversity and as a crucial bioresource. Traditional knowledge and Western science generally make use of plants, animals, and other materials. However, from time immemorial, plants (more than animals) have been the major source of materials for drugs and galenic preparations.24 Prior to the advent of modern biomedicine, all biologically active elements were

Conceptual Perspectives on Biodiversity 39

obtained from natural materials,25 especially plants. Modern pharmacology is an offshoot of traditional herbal practices. The sub-discipline of phytomedicine owes its existence to plant biodiversity. Plant-based therapeutic practices remain arguably the most significant aspect of traditional knowledge, which is now the subject of Western pharmaceutical and biotechnology interests. The renowned professor of pharmacognosy Norman Farnsworth finds that about 85 per cent of traditional medicine involves the use of plant extracts. In his estimation, between 3.5 and 4 billion people in the world rely on plant biodiversity as sources of drugs.26 An equal number depend on plant agro-biodiversity for subsistence. Kerry ten Kate and Sarah A. Laird estimate that the combined annual global markets of genetic resources–derived products from pharmaceuticals, botanical medicines, major crops, horticulture, crop protection products, and applications of biotechnology thereof to be between US$500 and US$800 billion,27 figures comparable to annual global sales of petrochemicals and world computer soft/hardware and general IT services market.28 Thus, the significance of plant biodiversity cannot be overstressed. Bioresources: Global ‘Assets’ in Southern Borders Among the ecosystems that are critical to life forms are tropical coral reefs, ancient lakes, Mediterranean climatic regions, island ecosystems, savannas, coastal wetlands, tidal zones, and, most important, tropical rainforests.29 The latter are the oldest land ecosystems, characterized by sophisticated interactions of life forms. There are five to ten times as many species in the tropical rainforest as can be found anywhere else.30 Similarly, no other place on earth competes with Amazonia’s rich wildlife as a unit area and as a subcontinental region.31 Described variously as ‘Vavilov centres of genetic diversity,’32 ‘power houses of evolution,’ ‘the womb of life,’33 ‘a gene bank,’34 and so forth, tropical rainforests represent the highest rate of evolutionary diversification. Even though tropical rainforests harbour between 50 per cent and 90 per cent of all species, they cover only 7 per cent of the earth’s land surface.35 Thus, the tropical rainforests serve as ideal focus of global biodiversity interest. The richness of biodiversity in the tropical South can be captured from few samples. A single leguminous tree in Peru harbours fortythree species of ants, almost the same as the entire ant population in Great Britain.36 Costa Rica has an estimated fifteen hundred to two thousand butterfly species. Britain has about sixty, even though Costa

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Rica constitutes less than one-sixth of the British land area.37 To physical/zoological geographers and conservation biologists, the whole of Europe is but a small fragment compared to Asia in terms of diversity of animal life.38 All the tree species in North America are equal to just seven hundred species of trees in ten selected one-hectare plots in Borneo. The Cape Florist Peninsula in South Africa, which is only 470 square kilometres in area, is home to over two thousand indigenous species, a greater number than the entire flora species of Eastern North America.39 A square-kilometre of the forests of Central or South America contains a legendary collection running into hundreds of assorted species. Based on ecological factors, including the complexity of soils and other geological features, altitudinal variation and history, areas of great importance to biodiversity include tropical Africa, Oceania, and tropical Asia.40 Despite the practice of funnelling global bioresources to ex situ gene banks in the North, southern regions still remain the global biodiversity hot spots.41 Experience has shown that technology is constrained to some degree in transferring the natural biodiversity deposits from the South to the North. But this is not to say that the continued effort in this direction does not affect the natural repositories of bioresources. In all, despite the political economy of bioresource appropriations and transfers, the South remains the natural custodian of biodiversity treasure, which is of significant global interest.42 For reasons of the uneven concentration of life forms in one geographical and geopolitical region as well as for the abstracted nature of biodiversity, its protection is pursued collectively as a common concern. Biodiversity in Crisis The alarming loss of global biodiversity remains the most common motivation for addressing the biodiversity crisis. From the evolution of earth life about four billion years ago, loss of species has been a fact of life. Before Homo sapiens joined other life forms, mass extinction and speciation remained a natural occurrence. The last record of those phenomena was sixty-five million years ago. By that time, almost all marine plankton, as well as major groups of marine invertebrates and all dinosaurs, were affected.43 Scientists are in agreement that in an ideal situation, nature, or biodiversity, has a capacity for self-sustenance and regeneration. However, that does not mean sustaining a static balance because the ecosystem is a dynamic phenomenon. Nevertheless, the

Conceptual Perspectives on Biodiversity 41

current global biodiversity crisis appears to undermine nature’s regenerative capacity. From the appearance of Homo sapiens, the onset of agriculture some ten to thirteen thousand years ago, through to the nineteenth- and twentieth- century colonialist encroachment into the centres of biodiversity, pressures on the natural environment have increased. The result is a major imbalance in the biodiversity equilibrium. Although not blamed as the exclusive culprit, humanity’s contribution to upsetting global ecological balance remains the most far-reaching. Hence, it has provoked international concern. Such phenomena as the introduction of species outside their natural range, increased volume of trade, demand/consumption of certain species and products for international and domestic market, and rapid environmental changes, such as the El Nino Southern Oscillation (ENSO) events, are complicit in the biodiversity crisis.44 By the 1980s, it had become clear that the extinction rate of species in the rainforests and other major habitats was far greater than it had been prior to 1800. Edward Wilson provides a chilling audit of biodiversity in the tropical rainforests. Wilson’s audit indicates that overall, less than 4 per cent of tropical rainforests are protected within parks or reserves. These include 5 per cent in Africa, 2 per cent in Latin America, and 6 per cent in Asia.45 Peter H. Raven warns that, by 2010, the only large blocks of undamaged forests will be those in the western and northern Brazilian Amazon, the interior of the Guyanas, and the central Zaire (Congo) basin in Africa. According to Raven, all the rest will have been devastated.46 The current extinction rate is estimated to be as much as ten thousand to forty thousand species a year. Translated, this amounts to a hundred species a day and four species an hour.47 There is a common understanding that the present rate of biodiversity loss is ‘one of the greatest threats of human tenure on Earth.’48 According to Jeffrey McNeely and Peter Raven, ‘[W]e are confronting an episode of species extinction [more] than anything the world has experienced in the past 65 million years.’49 Concern about biodiversity loss is primarily motivated by its implication for human life. The link between human survival and biological diversity is a logical inference. ‘Lack of biodiversity’ implies the extinction of all life forms including humankind, characterized as ‘a creature in a state of obligate dependency upon many critical products and processes of nature.’50 The increase in the global rate of extinction correlates with an increase in human vulnerability.51 The foregoing

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observations are couched in anthropocentric terms. Anthropocentrism does not enjoy universal consensus. Nevertheless, the observations conform to the notion of humanity’s self-preservation as a supreme imperative. An obvious motivation for protection of biodiversity is its alarming rate of extinction. Absent this, no consensus exists as to what end or objective biodiversity protection should serve. Arguments for the protection of biodiversity are presented on two principal planks: its economic/instrumentalist appeal and its intrinsic/value-oriented significance. The economic argument is basically anthropocentric. It is one most inclined to demarcate bioresources from biodiversity. It thrives within a market economy framework in which the worth of biological resources is determined by economic criteria. On the other hand, a value-centred or sentimental approach to biodiversity protection does not discount economic aspects, but that is not its primary motivation. It is premised on the conviction that each species is unique and intrinsically invaluable. A value-based or intrinsic approach does not accord with humanity’s assumption of a paternalistic role over other life forms.52 Based on utilitarianism, the economic instrumental arguments enjoy prominence in the West.53 On the other hand, the intrinsic or valueladen approach is attractive to non-Western or so-called alternative orientations. A strictly commercial approach to biodiversity conservation is driven by economic criteria of value and susceptible to their malleability. For example, research on a plant is usually premised on its medicinal potential. If the research on the plant were not completed before a rival alternative satisfies the aim of the research, in most cases interest in the plant would fade away. In this regard, the story of the Pacific yew tree (Taxus brevifolia) is instructive. For tens of thousands of years, the yew had no significant economic value. But in the 1980s things took a different turn. The chemical taxol was discovered to be an important agent in the treatment of ovarian cancer. Taxol was known to be present in commercial quantities in the bark of the yew, but the bark of twelve full-grown yew trees (of over a hundred years of age) would treat only a single patient!54 Consequently, the demand for yew heightened to the point that strong intervention was required to avert its extinction.55 Pacific yew is currently endangered. Other constraints on the economic approach are the unsettled questions about its legitimacy,56 ethical concerns, and the appropriate valuation of biodiversity, externalities, and so on. A non-economic rationale for biodiversity conservation hinges on a value system not propelled by

Conceptual Perspectives on Biodiversity 43

ever-changing economic indicators. Compared with the economic approach, such an outlook represents perhaps a more enduring system in which conserving biological diversity is not readily compromised by constantly varying economic indices. Whatever the limits of the economic rationale are, such considerations seem to be the overarching imperative for biodiversity conservation. On a broader level, this reinforces the interface between economics and environmental policy. The inevitability of economic considerations is reinforced by the centralization of bioresources in the now monolithic global marketplace. In this global marketplace, practices aimed at the protection of local and cultural sensitivities regarding dealings with biodiversity, which have no direct economic relevance, are perceived as barriers to free trade. The utilitarian framework is presented as a preferred ethical system for biodiversity conservation. In support of that framework, Wood points out that it is erroneous to assume that utilitarianism centres on human values only. He argues that utilitarianism is an ethical doctrine characterized by utility maximization.57 The latter may be propelled by human values. Arguably, however, utility maximization could be predicated on other considerations that may transcend human values. Similarly, the U.S. National Research Council (NRC) argues that ‘[i]t is a misconception to claim that utilitarianism counts only the satisfaction of instrumental needs … and the selfish desires of individuals.’58 There is no reason why utilitarianism, seen from these perspectives, cannot accommodate non-human interests.59 Nevertheless, utility indicators should not be premised on ‘universal or global values,’ as no such values exist in the strict sense. Utility is often a matter of value because it aims at preference satisfaction. There are no universal criteria for the measure of value, not even market outcomes on which utilitarianism relies. And therein lies the failure of the economic approach.60 A utilitarian quest for a common ethical framework for society is elusive. Not all cultures subject all values to economic auction, even though theoretically such analytical perspective seems possible. Therefore, biodiversity or ecology is a site of conflicted encounters. The Diversity of Biodiversity Benefits Notwithstanding the ideological debates regarding its rationale, the conservation of biodiversity remains one of the most important environmental issues of our time. No matter on what side of the divide one

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is located, humanity appreciates biodiversity at different levels. A cursory look at the immense benefits of biodiversity61 and its components explains why that is so. The benefits of biological diversity and its components cannot be exhaustively articulated. Biodiversity consists of the natural environment in all its manifestations. The scale of its exploitation is enormous and multifaceted. The benefits of biodiversity that may be emphasized will depend on the particular competing rationale to which one is predisposed. Thus, biodiversity (as an abstract term) and/or bioresources have economic and non-economic appeals. The two correspond to the idea of ‘use and non-use values’ of biodiversity in specialist literature.62 direct benefits Arguably, the most obvious benefit of biodiversity lies in the direct use of bioresources in consumption and production. Biodiversity has potential to provide food for humans in nearly as much variety as there are bioresources. However, Kevin J. Gaston and John I. Spicer write that of the least 250,000 species of flowering plants, about 3000 have been regarded as a food source and around 200 have been domesticated for food. Regrettably, at present more than 80 per cent of the food supply of the human population is obtained directly or indirectly from just twenty kinds of plants.63 In all cultures, and at all times, bioresources have been the major food source for humans and other life forms. Out of the so many available plants and others awaiting ‘discovery,’ very few are used for food.64 Wilson writes that ‘people have utilized about 7000 kinds of plants for food, predominant among these being wheat, rye, maize and about a dozen highly domesticated species. Yet there are at least 75,000 edible plants in existence, and many of these are superior to crop plants in the widest use.’65 According to the NRC, about 150 species of plants have entered world commerce. Out of these, three species account for 90 per cent of the supply of food plants by weight, calories, protein and fat for most of the world’s countries. Together, wheat, rice, and maize account for roughly 60 per cent of the calories and 56 per cent of the protein consumed by humans directly from plants.66 Plant biodiversity is not the only source of food for humanity. Needless to add, animals and aquatic resources67 are also exploited for food in various ways. Biological resources, especially plants, are significant sources of drugs both at traditional and non-traditional levels. From a World Health Organization (WHO) estimate, Farnsworth summarizes the importance

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of plant biodiversity for drug and health care. According to that estimate, 80 per cent of the people in developing countries rely on traditional medicine for their primary health-care needs, and about 85 per cent of traditional medicine involves the use of plant extracts. This leads to the conclusion that about 3.5 to 4 billion people in the world rely on plants as sources of drugs.68 Hong Kong, the largest herbal market in the world, imports over US$190 million worth of herbal medicine yearly. Japan and China have a rich tradition of health enhancement based on plant diversity. With its quarter of the world’s population, China relies on herbal medicine to an extent that has global significance. In the United States, more than one-quarter of all medicinal prescriptions are formulations of plants or microbial products and often their derivatives or synthetic versions.69 Both traditional remedies and orthodox medicine also make extensive use of animals and other organisms, apart from plants. At the industrial level, biological molecules are deployed to control unwanted species in the form of herbicides and insecticides. However, some herbicides and insecticides are chemically synthesized analogues of biological molecules. Biocontrol of so-called weeds and pests is fast becoming a fashionable industrial possibility of our time. In this regard, it is reported that about 30 per cent of weed control and 40 per cent of insect biocontrol programs are experimentally successful.70 Directly and/or indirectly, biological resources remain the source of a wide range of industrial materials. For instance, wood alone is the source of fuel, timber, and pulp, including their industrial offshoots. Plants and animal biodiversity provide industrial fibre, gums, spices, dyes, resins, rubber, oils, cellulose, agricultural chemicals and perfumes.71 The biotechnology industrial sector alone makes use of biological resources for agriculture, food processing, industrial chemical and pollution control, among others things. The scope of the exploitation of nature’s ‘bank of organisms’ for industrial purposes is immensely broad.72 Beyond industrial exploitation, biodiversity is central to other recreational endeavours with significant economic implications. Notable in this regard are the concepts of recreational harvesting and ecotourism, as well as associated activities. Recreational harvesting is a multifarious concept. It refers to harvesting and/or using exotic plants, or hunting wild animals for personal/ public gardens, or as pets for personal uses or exhibition. Commercial or botanical gardening are aspects of exploitation of biodiversity. For instance, most plant species grown in botanic gardens are commercially

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available as garden plants. Simply defined, ecotourism refers to environmentally friendly tourism undertaken for appreciation of nature’s biodiversity sanctuaries and other ecological havens with a deliberate commitment toward minimum interference thereof.73 Fishing, hunting, bird/wildlife-watching are recreational activities based on biodiversity. They make significant contribution to the economy. In the United States, such activities involved 77 million people with an expenditure of $101.2 billion in 1996, out of which wildlife watchers were 62.9 million participants.74 Global ecotourism receipts as well as global trade in wild pets and ornamental plants attest to the importance of recreational harvesting and ecotourism.75 indirect/existence benefits Biodiversity and biological resources have uncountable benefits that are not often as obvious as those with economic significance. These aspects are not usually factored in to economic calculations. They are not subjects of trade and, in simple terms, can be described as ‘free.’ These constitute indirect benefits. A few examples may suffice. Apart from the direct use of tropical rainforests, for example, as sources of timber, they also have a larger significance for ecological harmony, such as harbouring complex life forms. Their use values include conservation, erosion control, soil productivity, watershed protection, and so on.76 Similarly, commercially insignificant species are often direct food sources for economically important life forms. Chickens, for instance, feed on termites, worms, and other perceived economically insignificant organisms. The estimates of pollination services provided by insects to the global economy are in the billions of dollars.77 Given the complex and often non-recognizable and unexplainable interactions that exist in the ecosystem, it would require an extremely rare justification to dismiss life forms as ‘weeds,’ pests,’ or ‘wild’ – the latter term has been rejected as unacceptable by indigenous peoples both as a reference to their territories but also to natural resources found in their regions.78 Lastly, the idea of non–use values of bioresources suggests their values are not limited to their direct and indirect exploitation. Bioresources must be preserved whether exploited (i.e., put to any use) or not. Even though not exploited, they have three categories of values: option value, bequest value, and intrinsic value. Option and bequest values are interrelated. Biodiversity can be preserved for the simple reason that the option to use or not lies in the future. Thus, if biodiversity

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is not exploited, it is left as a bequest to future generations, who then would have to exercise or decline to exercise the option to exploit it. Maintaining genetic diversity is a way to guarantee the gene pool from which sought-after genetic character can be derived in the future. The underlying idea is that by preserving species, not necessarily for immediate exploitation, future generations will have the option to place value on what may not be valued in the present. As long as nature’s treasure remains inexhaustible and as long as there is no end to human curiosity, today’s weed may be a wonder drug in years to come. Responsibility to future generations, as an environmental ethic, is embodied in the principle of sustainable development. All the benefits of biodiversity discussed above, whether arising from direct or indirect use, or even from its non–use value, are evaluated from the perspective of humanity’s welfare. They highlight biodiversity’s economic/market and non-economic (e.g., non–use value) significance. In all of those, the welfare of humanity is assumed to be central. To that extent, the majority of the justifications for biodiversity protection have instrumental appeal. One qualifier here is that the assumption that the concept of value is exclusively tied to human interests is not always true. As Wood indicates, utilitarianism, for instance, serves non-human objectives as well. Contrary to human-centred values of biodiversity, intrinsic value is concerned with everything about biodiversity except humanity. The tenet of the intrinsic value argument is that living organisms have value in their own right.79 As David Ehrenfeld puts it, ‘[T]he very existence of diversity is its own warrant for survival.’80 Intrinsic value reinforces non-anthropocentric ecological principles, which support the right of all living things to exist, and denies humanity the claim to determine the value of ‘lower’ life forms. Humanity itself is an unconscious beneficiary of the intrinsic value argument. For instance, mere knowledge that wild animals exist (existence value), even without any dealing with them, represents a facet of value to the ‘knower’ that is not easily explained. In a converse analogy, there is some ill feeling provoked, for example, by mass loss of wild lives or ancient forests to bush fire or arson in New South Wales, British Columbia, California, or elsewhere. This may well be so even if we do not have any desire to become ecotourists in the regions involved. Therefore, it is arguable that the intrinsic values of biodiversity may not be devoid of some instrumental consideration. An aspect of the intrinsic value is ‘transformative value.’ This is a reference to the fact that our experiences with, and knowledge

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of, biodiversity offer an opportunity for self-reflection over our own values, attitudes, beliefs, our spirituality, and our role and place in life as a whole.81 Compared with contemporary emphasis on the economic benefits of biodiversity to humankind, the intrinsic value argument appears idealistic. However, strands of the intrinsic value argument are present in most ecological world views. Nonetheless, a strictly intrinsic notion of biodiversity in which humanity would not make use of biological resources may be unfeasible. Even other life forms prey on one another for their subsistence. It is common knowledge that ‘the belief that biodiversity has intrinsic as well as use value is deeply rooted … in many societies, cultures and faiths.’82 The controversy arises in regard to the role and degree of humanity’s involvement with the natural environment. Humankind’s relationship with the ecosystem is differently accounted for in many cultures. Between indigenous or nonWestern and Western categories, accounts of that relationship barely converge. The tension in those accounts translates into a cross-cultural debate between Western and non-Western (traditional) knowledge systems. Biodiversity: Two Concepts of Values The use of the term ‘benefit’ above in relation to biodiversity requires clarification. Literature on the subject makes reference to ‘value(s),’ ‘worth,’ or ‘uses’ of biodiversity in a very slippery fashion.83 Clarification in the present context is necessary because of its significance in subsequent analysis. The distinctions that Dan Perlman and Glenn Adelson make between two kinds of values in relation to biodiversity are helpful.84 Perlman and Adelson argue that values have two different but related levels of conceptualization. They refer to the first simply, as values – ‘the preferences, motivations, and [underlying] belief systems that human beings use in assessing the world’85 or ‘in undertaking an activity, investigating a matter, or protecting an object.’86 The phrase ‘value-laden’ applies to this category. It is a category of value influenced by internalized perspectives, attitudes, and goals of a person. Internalized belief systems and world views arise from the process of human development, including influences by a number of internal and external experiences that mould the person. Being highly subjective, this value category is usually contrasted with the notion of objectivity.

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Their second concept of values refers to ‘the worth of a particular object or activity.’87 When questions about the value of biodiversity are posed in this paradigm, the answer usually lists ‘different types of value (or worth) that humans find in various elements of biodiversity.’88 Such values are variously described in literature as direct/indirect use value, option/bequest value, non-use value, and existence value. The authors adopt the term ‘worth’ to designate and distinguish this category of value. That category corresponds with those that I have outlined above as benefits of biodiversity. I use ‘benefits’ above as Perlman and Adelson use ‘worth’ – to depict ‘the merit and importance’89 that humans attach to biodiversity, including its specific elements. I consider the term ‘benefit’ apt with respect to the economic/ instrumental and utilitarian paradigm under which that category of value is conceptualized. In all cultures, biodiversity has values that fall within the two major value categories. Because of its holistic ecological world view that links all aspects of life, indigenous or non-Western peoples’ ecological orientation identifies with and encompasses the different elements implicated under the two broad value categories. It does not draw a sharp distinction between the two. In order of balance, an indigenous ecological world view tilts more toward value types of the first class than the second.90 This is so for a number of reasons. First, values are not interpreted on the basis of economic exchange. Second, an indigenous world view is riddled with strong internalized belief systems, and hence it fits into that value category. On the contrary, a Western perspective is more likely to view biodiversity from the second value paradigm. This is so because it operates within a capitalist and market-oriented world view that emphasizes economic determination of values. Like the controversy over the role of humanity within the ecosystem, the dichotomy of emphasis between Western and non-Western world views on the values of biodiversity is supervised by equally antagonistic epistemological regimes. Traditional/Indigenous Knowledge Systems Colonialism and Epistemic Conflict From the section ‘Bioresources: Global “Assets” in Southern Borders’ above, it is clear that major biogeographic and phytogeographic regions of the world are located outside the developed countries. The majority

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of these ‘megadiversity’ hotspots or gene-rich countries are in the global South. That geopolitical bloc represents about 75 per cent of global population and is home to indigenous peoples and cultures. There are about five thousand different cultures in the world.91 Andrew Gray writes, ‘[I]f we compare this figure with the number of national state cultures in the world, we see that indigenous peoples constitute 90–95 per cent of cultural diversity of the world.’92 The remaining 25 per cent of the global population (now described as developed countries) historically colonized most areas of highest biodiversity and the homeland of many indigenous peoples. When people are colonized, their forests and natural resources are not excluded.93 One of the principal motivations for colonialism is control of natural resources. This is manifest in the so-called international division of labour in which one region (the South) is the supplier of raw (industrial) materials for the rest. Generally, colonialism brought with it the ideas of nature and culture based on commerce, the market economy, and eventually industrialization. The colonial rule thrived on a set of values reproduced in the colonies through the institutional and political power structures of the colonial state. Those values themselves, encapsulated in the ideology of capitalism, emerged and progressed from the onset of the industrial revolution. The knowledge and power nexus, according to Vandana Shiva, ‘[g]enerates inequities and domination by the way such knowledge is generated and structured, the way it is legitimised and alternatives are delegitimised, and the way in which such knowledge transforms nature and society.’94 Indigenous conceptions of the natural environment are sites of epistemological conflict between the colonizer and the colonized, the Western and non-Western. Indigenous or local peoples have from time immemorial developed bodies of knowledge under a holistic paradigm that is non-Western in the practical sense. This epistemological framework, which is based on ecological and spiritual imperatives, is an alternative cosmological space. It is characterized as traditional/ indigenous knowledge. Ecological order rooted in unique configurations of a people’s belief or religious system and spiritual outlook is the central plank of indigenous knowledge and world view. To a large extent, the essence of indigenous regimes is the creative adaptation to ecological order based on empirical observations. Because of existing ecological diversity in indigenous enclaves, ‘a corresponding diversity of indigenous languages, knowledge and heritages exists.’95 For this reason, any research that

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aspires to provide ‘a comprehensive definition of indigenous knowledge and heritage in any language system … would probably be misleading.’96 Thus, the closest to a definition of indigenous knowledge is to describe it as a ‘complete knowledge system with its own concepts of epistemology, philosophy, and scientific and logical validity.’97 Within an indigenous world view, humanity’s position is different from the Western account. Strikingly, humanity plays a humbler role than in the Western Judaeo-Christian and colonial tradition. Humanity operates within an environment of ecological and spiritual harmony and was never expelled or separated from that environment. We are not licensed to ‘conquer’ the earth. On the contrary, in the majority of nonWestern indigenous cultures, the sanctity of all life forms is emphasized. All lives are connected in an ecological and spiritual order. Humanity is but one significant strand in life’s complex web. In the words of James Henderson, ‘[H]umans are neither above nor below others in the circle of life. Every thing that exists in the circle is one unity, of one heart.’98 Yet, because there are prevalent warlike and hunter-gatherer indigenous cultures past and present, it could be argued that the fuss about the sanctity of life in indigenous cultures is a romanticized Western view. But the point must not be lost that even within such cultures the relationships (including hunting) and interaction between all life forces are sacred. These relationships are often negotiated and regulated within a religio-philosophical and cultural ethic. In this setting, life is a holistic order in a state of flux in which all life forms spin. The following lines further capture the sanctity of life in indigenous world view: ‘[L]ife and its forces are seen as a gift to be humbly accepted, not as something to be taken for granted or used to manipulate other life forms. Life is revered, acknowledged, and reaffirmed through prayer, ceremony, dance and ritual.’99 The above indicates the importance of religion and belief systems in indigenous world view. Writing along these lines, again, Marie Battiste and James Henderson observe that ‘[k]nowing the complex natures of natural forces and their interrelationships is an important context for indigenous knowledge and heritage. No separation of science, art, religion, philosophy or aesthetics exists in indigenous thought; such categories do not exist. Thus, Eurocentric researchers may know the name of a herbal cure and understand how it is used, but without the ceremony and ritual songs, chants, prayers and relationships, they cannot achieve the same effect.’100 Through the recognition of mutual relationships among forces and

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forms in the natural order, indigenous peoples are able to influence natural phenomena and are influenced by them. This system is fostered by the application of practical and ritualistic knowledge. Since no cultural paradigm is completely based on objective rationality or devoid of subjectivism, the belief system is often the source of community consensus.101 Social, cultural, and ecological conditionings, among others, thus provide the context for the evolution of knowledge. Founded on enlightenment and scientific rationality, the Western knowledge system, however, does not yet appear to respond wholly to evidence of subjectivity inherent in all knowledge forms. That would strike at the very heart of its putative superiority as the knowledge above all knowledge systems. In essence, that amounts to questioning the basis for its delegitimization of alternative ways of knowing and its claims to universalism and legitimacy. Therapeutic Uses of Plants: A Glimpse of Indigenous Epistemic Holism Traditional or indigenous knowledge is a multilayered knowledge system evolving from a sociocultural conception of a world view in which ecological and spiritual harmony is central. The use of plants for therapeutic purposes is but one layer of the complex indigenous knowledge system. I isolate that layer not with a view to foisting a Eurocentric epistemolgical culture of fragmentation on indigenous knowledge. Such an approach provokes anxiety in indigenous peoples and scholarship. Interestingly, discussions of the use of plants provide a paradigm for understanding the holism associated with indigenous knowledge systems. Indigenous use of plants for therapeutic purposes involves complex religio-cultural, social, and metaphysical experience. It brings to the fore different conceptions of health and sickness as well as the role of associated belief systems. Detailed discussion is reserved to the fourth chapter, but it suffices here to say that indigenous and non-Western peoples have similar epistemological dispositions toward plant life as they have with the rest of the ecosystem. Unlike in the Western framework, plants have religious and cultural significance in many indigenous cultures. Deployment of plants for therapeutic purposes is not an isolated practice. Usually embedded in rituals, sacrifices, and in the context of sociocultural belief systems, plants are accorded a sanctity in some indigenous cultures that reflects, to some extent, the norm of inviolability of natural and ecological order not easily seen in Western industrial economic systems.

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Conceptions of plant life forms in the West emphasize their economic utility. However, economic utility alone hardly captures the significance of plants in non-Western cultures. Religio-philosophical practices in East Asia and among the indigenous nations of the Americas reflect a holistic view of all life forms (including plants) in a harmonious interrelationship. Thus, among these non-Western cultures, ‘[t]he ideology of nature as an organic entity and humanity as a part of an integral whole is perhaps a unified theory of life.’102 Unity in the diversity of life forms in a synthesis of materialism and deep spiritualism103 that largely forms the creedal essence of most religious conceptions of nature, particularly in the Oriental, Native American and African religious contexts. Thus, under this philosophical paradigm plants are not capable of being legitimate subjects of private ownership, domination and control, let alone commoditization. On the other hand in the Western JudeoChristian context plants and other manifestations of sub-human life forms are considered as raw materials … It thus follows that plants can be owned as property and conveyed into the marketplace as objects of trade and one of the mechanisms for the acquisition and accumulation of surplus capital.104

The account of that encounter for environmental management, particularly conservation of biological diversity, is the site of conflicting narratives. At issue is which of the two models – industrial and non-industrial – is more sensitive to the acknowledged imperative to conserve biological resources. Indigenous Knowledge as Marginalized Knowledge Most of the uses of biological resources discussed under the section section above ‘The Diversity of Biodiversity Benefits’ are accentuated through industrial exploitation. For instance, the use of wood for paper, pulp and fibre is a highly industrial and technological enterprise. Biotechnology, genetic engineering, and virtually all life sciences deploy biological resources on a massive scale for the satisfaction of human consumption; thus, mass cropping through agricultural monoculturism serves as a catalyst for overconsumption.105 The Western scientific approach to nature represents only one epistemic outlook. It is far short of the variety needed for sustaining the diversities that exist in nature. Given its predominance over other views of nature, on a broader scale, it amounts to the substitution of diversity for uniformity. One reminder

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of the limitation of that approach is the failed Green Revolution project. The lesson of that failure is that monoculture can be a source of scarcity and poverty.106 Furthermore, present concerns about genetically modified organisms (GMOs) in this era of ‘biorevolution’ are also indicative of the uncertainty about the consequences of the Western industrial approach to nature.107 An industrial approach to natural resources facilitates overharvesting and consumption of natural resources, thereby posing a major threat to biodiversity. The global consumption pattern of biodiversity components supports this fact. Only 25 per cent of the global population controls the technologies and 85 per cent of the global financial wealth needed for the deployment and consumption of natural resources. These consist mainly of the industrialized countries of the North. The tropical countries (including China) have 75 per cent of the world’s population and only 15 per cent of the global financial wealth.108 Collectively, people in developing countries use 20 per cent of industrial energy and less of most other materials that contribute to their standard of living, and include among their members only 6 per cent of world scientists and engineers, according to the United Nations and the World Bank.109 The Netherlands alone is said to be responsible for the degradation of an area in the tropics as large as its own territory just for the supply of soya and tapioca.110 Germany degrades approximately 200,000 hectares of rainforest each year through the consumption of tropical timber.111 Four hundred or so years of biodiversity destruction is the handiwork of powerful forces intent on satisfying markets in colonial and industrialized countries.112 Compared with most communities in the gene-rich corners of the world, industrialized societies have had no satisfactory respect for biodiversity conservation. Communities that depend on ‘intact nature’ are arguably ‘superior to modern industrial societies in terms of their relationship with nature, which is based on respect and a sense of community instead of just viewing it as “resources.”’113 In sharp contrast to the foregoing, the political and economic roots of biodiversity destruction are neglected in popular accounts of biodiversity loss. Ironically, the indigenous peoples are often blamed for biodiversity erosion. In such a scenario, biodiversity degradation is shown as a phenomenon of the Third and Fourth Worlds, one that, by contrast, the developed countries are addressing.114 Global institutional interests on biodiversity conservation are concentrated in the industrialized North. A situation has risen whereby environmental management is now a

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condition for economic and development assistance in the Third World.115 Through the legal and institutional regimes of the CBD and the World Bank’s Global Environmental Facility (GEF), ‘the developed and developing countries struck a less-than-perfect bargain: increased funding [to developing countries] would be made available to address global environmental issues,’116 including biodiversity loss. Inherent in this so-called consensus and a similar policy approach is that biodiversity depletion is a Third World phenomenon. Despite the rhetorical reference to the North’s historical responsibility for biodiversity loss, the developing countries are portrayed as the most responsible for the situation. Poverty and its offshoots, ignorance, hunger, disease, population pressure, poaching, and overharvesting of species are the Third World phenomena fingered in this account. Indigenous peoples are portrayed as threats to biological diversity.117 Their relationship with the ecosystem vis-à-vis the Northern campaign of biodiversity conservation has been described as ‘the dilemma of deep ecology meeting the developing world.’118 The situation is one in which the local communities at the centres of biodiversity are blamed as its greatest threat. We know that this account flies in the face of the world views prevalent in indigenous cultures. Accounts of biodiversity crisis that ignore the effects of consumption pattern, industrial pressures, and global economic structure are flawed. From five hundred years of colonialism to contemporary globalism, the transfer of natural resources to the centres of global financial capital remains an uninterrupted trend. This correlates with the so-called international division of labour alluded to earlier. The South–North pattern of resource exploitation is the basis on which indigenous people are unwillingly dragged into the global economy. International economic and political forces influence resource exploitation at even the most local levels.119 Thus, bioresource depletion in the gene-rich countries is largely a response to global economic pressure. Trading relationships between gene-rich countries and the industrial regions of the world continue to put pressure on the natural environment in the former.120 With high debt portfolios, most of these countries are under stress to exploit their natural resources in order to service their debts and meet other demands of modern state administration. The debt crisis and the structural adjustment programs (SAP) make natural resource export an imperative for raising foreign exchange. It is doubtful that recent cancellation of the debts of eighteen of the world’s poorest countries by the G8 will have any trickle-down effect on

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biodiversity conservation in those countries. In Brazil, Pakistan, the Philippines, and India, expansion of exports is the leading cause of decline in habitat and species loss.121 For instance, the export market is core to industrial growth in Pakistan. Yet such exports are at the expense of the mangroves in the Karachi Delta. In Cameroon, an increased timber harvest for export exposes wildlife habitats, leading to an increase in domestic hunting and consumption of bushmeat.122 Thus, accounts of legal and illegal funnelling of natural resources from generich countries abound.123 In the distorted account of bioresource depletion, gene-rich countries are portrayed as resistant to conservation of their rich biological diversity.124 The conservation-oriented nature of their local knowledge is dismissed as rudimentary. Indigenous and local peoples are portrayed to be anti-conservation. What is emphasized is that they perceive conservation rhetoric as censorship of their development aspirations. Without factoring in the global industrial and political economy that undermines the conservation of natural resources, this account looks real. But it does not paint a complete or clear picture. Working within Western industrial and development paradigms, generich countries embrace the monocultural approach to agriculture and resource management. Monoculturism undermines genetically diverse indigenous cropping systems and associated indigenous knowledge. For instance, for over forty years, the World Bank (WB) has contributed to the destruction of genetic diversity in the gene-rich countries, as exemplified in the failed Green Revolution.125 The WB’s development projects in the developing countries have been criticized as insensitive to the ecological ethics prevalent among indigenous cultures, peoples, and knowledge systems. It is blamed for financing projects that have contributed to the erosion of ecological harmony in the rural areas of the Third World. This charge has remained valid until fairly recently, when the WB initiated a responsive policy reversal. The World Bank’s response to ecological concerns in recent times appears to mitigate its previous insensitivity in that regard, and its policy shift reflects in the priority it gives to environmental impact assessment (EIA) of its projects. The WB has also adopted other policy initiatives designed to respect local ecological sensitivities as they affect its financed projects.126 The industrial model of exploitation of natural resources into which the modern nation states in the gene-rich regions have been co-opted does not reflect indigenous values and knowledge systems. The present nation states in which most indigenous peoples are located are crea-

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tures of Eurocentric modern international law. There is no unity of purpose between the power elites in those states and the indigenous or local peoples.127 Built on colonial foundations, the political, legal, and economic structures in most of these states reflect colonial values. Thus complicit in the Western industrial model approach to life form, those states and their ecological policies neither encourage indigenous knowledge nor truly reflect indigenous aspirations. Despite the political and economic frameworks in which local peoples’ voices are marginalized, they still retain practical respect for life forms generally, but particularly within their epistemic framework. Their commitment to the sanctity of the ecological and spiritual order is a felt imperative for their survival, re-enacted on a daily basis as their lived reality. In his account of the Third World farmer, which is often the paragon of indigenous epistemic experience, James Nations writes: ‘The Third-World farmer appreciates his dependence on biological diversity because that dependence is highly visible to him. He knows that his life is based on the living organisms that surround him. From the biological diversity that forms his natural environment he gathers edible fruits, wild animals for protein, fiber for clothing and ropes, incense for religious ceremonies, natural insecticides, fish poisons, wood for houses, furniture and canoes, and medicinal plants that may cure a toothache or a snake bite.’128 We can make one definite conclusion from this account. A people to whom ecological harmony is first nature are the most appreciative of the imperative to preserve biodiversity. The political economy of resource exploitation as well as the politicized narrative of global ecological crisis marginalizes the role of indigenous knowledge and values. Similarly, mechanisms designed to encourage, protect, and reward ecologically friendly practices are not presented in terms familiar to indigenous or local epistemic approaches to the natural environment. This is made clearer in the discussion of intellectual property in the next section and in subsequent chapters. Intellectual Property Rights The Concept of Intellectual Property The Western industrial approach to resource exploitation is an integral part of its legal and ideological construction of knowledge. This ideologically constructed nexus between knowledge and resource exploita-

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tion is supervised by the regime of IPRs. Orthodox intellectual property regimes are fundamentally Western in conception and origin. Traditionally, they seek to promote industry and secure its benefits for the citizenry by rewarding creativity, originality, and inventiveness.129 In the present context, the pivotal industrial paradigm is biological resources. In the Western ideological mould, biological resources are exploited to secure benefits for humanity first and foremost. In doing this, risks are undertaken. These investments or undertakings require recognition and reward. There is a vast field of philosophical and ideological debate on the justification for intellectual property rights. However, the consensus is that intellectual property rights constitute one of the fundamental mechanisms used to allocate rights over knowledge and its products.130 The emergence of intellectual property in the Western politico-philosophical landscape signifies the dynamism associated with the phenomenon of property. Conceptions of property, at any point in time, are paradigmatic of the ideological shifts in the course of Western civilization.131 Extension of property rights to fruits of mental exertion has, in and of itself, the entire gamut of the characteristics of Western liberal political ideology of freedom, individualism, capitalism, and free market economics. It alludes to the transition from the era of monarchical and ecclesiastical tyranny to the era of ‘enlightenment’ and the dawn of ‘rationality,’ even though the development of intellectual property rights did not and does not reflect any such epochal divide. Locke conceptualizes property as the platform of a vision to neutralize the excesses of an irresponsible monarchy.132 Along these lines Peter Drahos observes: The emergence of well defined, secure property rights was part of a broader historical process in which absolute monarchies and their legitimating political philosophies lost their institutional dominance to be replaced by the institution of the modern state and secular political philosophies that recognized the rights of the individual within and against the state. Peasants, serfs and vassals became citizens and citizens came to hold properties created by the sovereign state ... Redefining, rethinking, and redistributing property has always been one way, perhaps the most important way in which political ideas and philosophies have made themselves concrete in the world.133

In a similar vein, Justin Hughes writes that since the founding of the United States, the concept of property has changed dramatically to-

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ward treating new things as property.134 In this change, Hughes observes that atypical forms of property such as intellectual property have taken on phenomenal importance compared with old traditional properties like farms, factories, and so on. As a crucial arsenal of capitalist ideology, ‘IPRs are essentially vehicles to propel works into the market: they are more instruments of commerce than of culture.’135 Bluntly stated, intellectual property in the West is a commercial commodity whose creator is essentially the individual. However, the notion of the romanticized individual inventor or the idea of inventor as hero has been displaced by the notion of corporate and syndicated inventorship. This does not undermine the fact that the notion of corporate personality theoretically makes invention a capitalist endeavour of the individual or his/her artificial substitute as contrived by law. Commercial undertones of intellectual property rights can be highlighted at a few regime levels. Generally, the value of a patent lies in the relevance of its end product or the patented process in the marketplace. A patent’s ability to fence off potential rivals in order for the patentee to maximize commercial opportunities and further monopolistic tendencies is yet one of its ideals. Hence, beyond usefulness, industrial applicability and commercial viability are material considerations for patentability. Unlike commercial feasibility, industrial applicability is indeed a legal prescription for patentability. Similarly, no trademark worth the name exists or ever existed except as attached to a product of some commercial value, goodwill, or potential. With respect to copyright, ‘the underlying concept of copyright is monopoly, first granted to printers, then to booksellers and only later to individual creators ... copyright is treated as a commodity to be bought and sold.’136 Easy alienation of a creator’s rights, whether as an inventor or author, by way of licensing, assignments, or contract, signifies the commercial appeal of intellectual property rights. In no substantive manner do other regimes of intellectual property represent an exception to the commercial and trade thrust at the heart of intellectual property rights.137 One of the conditions precedent to the existence of intellectual property rights is the physical manifestation of an idea or its reduction into practice.138 There is a limit to which mere ideas can enjoy protection as intellectual property.139 Ideas that cannot be translated into fixed forms are not the subject of intellectual property rights. In other words, it is to expressions of ideas that intellectual property protections apply. Because knowledge is abstract, intellectual property provides a vehicle for

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converting knowledge into tangible property. Thereafter, the value of the knowledge is expressed in economic terms and determined by market forces. Elaborating on the economic implication, Norman Spaulding notes that the Western approach is one that commodifies and ‘thingifies,’140 in the words of a scholar, ‘the process and output of human labour and imposes private “toll gates” or “fences” around knowledge.’141 The epistemological framework in which this concept of intellectual property thrives is one that seeks to achieve fragmentation or reductionism, fixation, extractivism, and form representation as concrete expressions of knowledge. All these features are not only associated with the Western scientific world view but constitute key elements in its determination of knowledge. The scientific approach to knowledge is a channel through which the West relates to the natural environment. Biological resources are targets of human appropriation for industrial purposes, with the ultimate aim of advancing economic wellbeing, first of the individual creator and then the society. A different scenario reigns in non-Western traditions. The achievement of a holistic ecological order through non-Western or informal scientific approaches is at the heart of epistemic regimes in non-Western cultures. A core feature of those epistemic regimes is the ecological essence. Although it defies definition, it is founded on a world view that perceives the world in terms of social and spiritual relations between all life forms and in close contact with nature. Knowledge of the natural world is attained through mysticism, spiritualism, and forms of animism. In this holistic order, reductionism, fixation, extractivism, and form are not fundamental paradigms. The natural environment and its biological diversity (of which humankind is a component) are inseparable. In the words of Harry Hillman Chartrand, ‘[C]ause and effect are not distinguishable. Science and art are one, how to make something and the thing made are mystically unified, process and product are identical.’142 Unlike in the Western mould, there is no conquest and adversarial relationship between the individual and community, or between humanity and the natural environment. Humanity is one with the environment, and communitarian action and activity are the essential setting in which ‘intellectual property’ is generated.143 The central conflict in the extant global phase of intellectual property is the epistemological gulf between Western and non-Western ways of knowing. Although the epistemic gulf is rooted in the early days of cross-cultural encounter with the New World, the onset of a

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knowledge-based economy near the end of the Cold War has heightened it. Despite the conflict, recent developments reinforce the validity of non-Western knowledge systems. In the bioresource-dependent field of life sciences, the information traffic from non-Western to Western scientific databases is simply phenomenal. Of major concern, however, is that an intellectual property rights–based approach to information or knowledge is an industrial and free-market model. If it is imported into a non-Western cultural milieu in wholesale fashion, its adequacy is called into question.144 This is the major challenge of the extant global phase in the evolution of intellectual property rights. Using Western intellectual property yardsticks to determine knowledge and its rewards short-changes knowledge systems and world views centred on ecological holism and community. Ironically, while international attention in the twentieth and twentyfirst centuries has focused on non-Western or indigenous cultures and peoples, that same period has recorded an accentuated drive for a global intellectual property order fashioned after the Western tradition. The task of the next section is to trace and situate the trajectory of international legal developments up to the contemporary epoch in which the protection of indigenous peoples forms the fundamental backdrop to the protection of their knowledge systems. The immediate objective is to establish that there is an international legal regime for the protection of indigenous peoples. International Law Relating to Indigenous Peoples As will become clearer in chapter 3, protection of indigenous knowledge is a crucial component of an international law regime on the subject of indigenous peoples. Therefore, it is pertinent to reiterate up front that indigenous knowledge is not the exclusive preserve of indigenous peoples. However, international law’s treatment of the indigenous subject provides the template for the development of the law on the subjects of the knowledge forms of both indigenous peoples and other non-Western cultures. This is borne out by interchangeable use of ‘indigenous’ and ‘traditional knowledge,’ as well as references to ‘the knowledge of indigenous and local communities’145 in a number of international legal and quasi-legal instruments. Both under customary international law and treaty, there is ample evidence to support the view that there is a substantive international

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legal regime on indigenous peoples. Grounded in the history of indigenous struggles, events in the past half decade indicate that protection of indigenous or traditional knowledge is at the frontier of that regime. The Indigenous Question in International Law: A Historical Perspective Early European jurisprudence on dealings with indigenous peoples predominantly appealed to natural law and was based on the convergence of law and theology. Its champions included two prominent Spanish clerics, Bartolome de las Casas and Francisco Vitoria.146 For Vitoria, God was the source of legal authority. God’s authority surpasses other temporal authorities. Normative order should govern all humanity. Such order should transcend artificial categories of human association like nation states and kingdoms. Grotius characterized natural law outside Vitoria’s divine paradigm. For Grotius, right reason, humanist, and secular moral standards should be the filtering criteria for a suprasovereign normative order to which all laws, including those dealing with indigenous peoples, should conform. However, the emergence of the post-Westphalian state structure in the seventeenth century marked an intellectual shift in the Grotian conception of natural law. James Anaya observes that with the rise of modern state, ‘European theorists transformed the concept of natural law from a universal moral code for humankind into a bifurcated regime comprised of the natural rights of individuals and the natural rights of states. This transformation has been called “the most important intellectual development of the seventeenth century subsequent to Grotius.”’147 The nation state then became the pivot of all political theory and discourse. Centralized statehood, constructed in the Westphalian mould, was the model of all human associations. It also constituted the framework for all political privileges in international law. The Westphalian state was generally perceived as not corresponding to the socio-political and cultural groupings of indigenous peoples across the world.148 International publicists in the late nineteenth and early twentieth centuries lent support to an extreme positivist view of international law.149 In sharp contrast to Vattel’s modernized doctrines in the eighteenth century, natural law was virtually jettisoned as an aspect of the law of nations. Thus, international law was not applicable to all political bodies, not to mention persons. For all material purposes, it was construed as law between nations. Under this conception, indigenous

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peoples were excluded as subjects of international law. They had no status or rights in international law except those conferred by the colonial state. Developments in the first half of the twentieth century, such as the end of the Second World War and the emergence of a global order based on a vision of peace and under the umbrella of the new governing structure of the United Nations, tempered the exclusive Eurocentric character of international law. Notably, ‘[t]he horrors of the Nazi Holocaust prompted a rethinking of the virtually unlimited discretion states had regarding the treatment of their own citizens. The United Nations Charter put human rights and self-determination of peoples first, making them a raison d’être of the new worldwide organizations of governments.’150 Following the Second World War, the demise of the League of Nations, and the emergence of the United Nations in 1945, the gates were opened for the admission of new actors to the international process. This was in part through the United Nations General Assembly’s ‘Declaration on the Granting of Independence for Countries and Peoples in General.’151 That charter was catalytic to the independence of the countries of Africa, Latin America, the Caribbean, Asia, and the Pacific. Clearly representing the majority, these countries were to dilute European influence in global decision making, or so it seemed. Nevertheless, the General Assembly in effect limited decolonization to overseas territories, as opposed to ‘internal collectives’ or the ‘enclave territories.’ This policy is regarded as the salt water or blue water theory.152 The excluded indigenous collectives in the enclave territories continued to champion the decolonization struggle by using the United Nations framework. The UN philosophy, perhaps more than the influence of the emergent states, was instrumental in redirecting the focus of international law. The United Nations Charter reflects a marked shift from the positivist thrust of international law that radically undermined indigenous peoples’ aspirations. It embraced the accommodation of a broad spectrum of views and the pursuit of world peace. However, without compromising the state-centric character of international law, the United Nations’ vision of world peace incorporates basic human values. Those inalienable rights and values represent the backbone of the UN and modern international law’s return to a naturalist appeal. In the words of Keith Nunes, ‘The starting point of the Peace of the United Nations, as opposed to the Peace of Westphalia which was essentially centred on the nation-state, is the constitutive instrument known as the United

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Nations Charter, and it speaks of, “We the Peoples” ... [A]ctually, the U.N. Charter speaks of rights that accrue to the peoples prior to the organization of the nation-state which is party to the Charter as an international agreement or treaty ...’153 Another significant influence of the United Nations to modern international law is captured in the observation that the Charter encourages significant levels of non-state participation in the UN deliberative process, as well as allows nongovernmental bodies to affiliate with the UN Economic and Social Council, which is the parent body of the United Nations human rights and policy organs.154 To consolidate the shift in the direction of the international process, the UN initiated three key instruments known as the International Bill of Rights. They are the Universal Declaration of Human Rights, 1948,155 and the two basic human rights treaties of 1966: the International Covenant on Civil and Political Rights,156 and the International Covenant on Economic, Social, and Cultural Rights.157 In the observation of Siegfried Wiessner, ‘[T]hese treaties ensure religious freedom, guarantee self-determination of peoples and even protect the rights of minorities to the preservation and enjoyment of their cultural heritage.’158 The human rights framework of the United Nations was the launching pad for an indigenous renaissance in contemporary international law. Under this framework, there is a guarantee of equal rights, selfdetermination of peoples, respect for human rights, and fundamental freedoms for all without distinction as to race, sex, language, religion, and conditions of economic and social progress and development. There is a plethora of issues under which indigenous questions are raised within the United Nations. The following headings lend themselves to the indigenous cause: racial discrimination, decolonization or self-determination, cultural minorities, and individual human rights.159 Others include labour, economic development, cultural rights, and the environment. In addition, there are five fundamentally different competing conceptual structures by which indigenous claims are placed on the international agenda.160 They are claims of human rights and nondiscrimination, self-determination, historic sovereignty, and claims based on the fact of indigeneity, which includes treaty and other agreements with states.161 These lists are not exhaustive. The overlapping nature of these claims indicates that different indigenous demands may fall into several categories at once. Therefore, the totality of these claims as a genre should not be mistaken as belonging exclusively to any one or other category.162 Indigenous peoples/issues fit into the various provi-

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sions of the International Bill of Rights. Yet it is clear that the peculiar problems facing them required more than a shift in emphasis from the general human rights framework to peculiarly indigenous issues.163 Benedict Kingsbury agrees with ‘[t]he notion that some legal claims raised by indigenous peoples are sui generis and have a distinct conceptual structure.’164 Thus, the latter part of the twentieth century is marked by a realization of the credibility of peculiarly indigenous demands in international law. Among contemporary international legal publicists on indigenous rights, there appears to be a consensus over the existence of customary international law on indigenous rights. There is an understanding that an international norm on indigenous peoples has crystallized, or to use the language of Wiessner, ‘hardened.’165 That understanding is based mainly on developments in the international and national arenas. Indeed, virtually every principal source of international law, as enunciated by article 38(1) of the Statute of International Court of Justice166 and other sources outside the statute provide evidence of the international law on indigenous peoples. These are amplified by state practice and declarations of non-governmental indigenous and human rights organizations that incorporate the ‘soft’ law or quasi-legal component of this development. Pressure from such organizations, coupled with the writings of publicists, have been largely instrumental in the responsive developments at national and international levels. At both institutional and instrumental levels, a number of developments on the indigenous front are significant. For instance, the International Labour Organization (ILO) was the first major world body to address indigenous concerns even of the pre-decolonization era. It moved beyond its original concern with the exploitation of indigenous labour and pioneered an institutional and international legal initiative on virtually all aspects of the indigenous question. Specifically, its Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries167 represented, in its time, ‘international law’s most concrete manifestation of the growing responsiveness to indigenous peoples’ demands.’168 Another significant development was the recommendation of a littleknown 1970 United Nations interim report by Augusto Willemsen Diaz on racial discrimination for a separate United Nations study on indigenous populations, the famous Cobo Report. The latter was to become the fundamental reference point on the discussion of indigenous issues at the United Nations,169 setting the stage for the complete entrench-

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ment of the indigenous question on the international political and legal agenda. Perhaps one of the greatest contributions of the Cobo Report was its recommendation to establish the UN Working Group on Indigenous Populations (UNWGIP). After a nearly decade of work, the UNWGIP in 1993 approved a Draft Declaration on the Rights of Indigenous Peoples.170 This document emanates from the UNWGIP’s standardsetting mandate. Nonetheless, it covers aspects of the working group’s other commissions, namely the subjects of treaties and indigenous cultural and intellectual property. Like its precursor the Cobo Report, the Declaration is hailed as a landmark document. Wiessner describes it, albeit arguably, as ‘the most affirmative intergovernmental response yet to the rights of indigenous peoples.’171 The range of rights set out in the Draft encompasses a comprehensive category rooted in the historical search for justice and in the postcolonial quest for indigenous renaissance. These include, but are not limited to, the right to self-determination and to distinct political, legal, cultural, social, and institutional identity of indigenous peoples. Also covered are rights to protection against genocide and similar atrocities, forced relocation, and assimilation or integration into imposed or foreign lifestyles. In a similar vein, protection of tribal language and traditional conservation, including medicinal rights and practices, are guaranteed. Other protected rights include educational and territorial rights over ancestral location, spiritual and religious autonomy, sanctity of archaeological and historical sites, artifacts, human remains, restitution rights for confiscated lands, and general restitution rights for nonconsensually alienated properties. This list is by no means exhaustive. The Draft Declaration marks a watershed in the evolution of international law on indigenous peoples. Although it is yet to attain the ultimate objective of being transformed into a Declaration of the General Assembly of the UN, it represents the burgeoning consensus on indigenous rights within and between states. By their implementation, declarations can attain the status of traditional or customary international law. The draft is still stalled at the UN Human Rights Commission mainly as a result of lack of consensus among states on how to interpret indigenous peoples’ right to self-determination. While the review of the Draft was pending, in April 2001, the UN established a Permanent Forum on Indigenous Issues.172 The Forum was set up as a subsidiary organ of the Economic and Social Council. It is designed to ‘serve as an advisory body to the Council with a mandate

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to discuss indigenous issues within the mandate of the Council relating to economic and social development, culture and the environment, education and human rights.’173 The establishment of the Forum represents the climax thus far of international law on indigenous peoples. It symbolizes a potential victory of historic and contemporary significance. Its promise for the future of indigenous peoples will unfold with time. The Forum is a symbolic milestone in the indigenous struggle. It is to be hoped that it represents the willingness of the UN and international law to move beyond the rhetoric of indigenous rights toward some form of implementation initiatives. Indigenous Activism Indigenous peoples, especially those of the Northern Hemisphere and the Australasian continent, played pivotal roles in influencing the emergence of a more accommodating international regime. Through national and international mobilization efforts and strong networking, indigenous communities in the Americas, Canada, Australia, New Zealand, Polynesia, and the European Arctic regions demanded accountability from their national governments. Indigenous leaders in those countries galvanized international consciousness regarding the plight of indigenous peoples. They formed national and international non-governmental organizations. As part of this trend, there is now a ‘circumpolar council’ that brings together indigenous peoples of Scandinavia, Greenland, Canada, the United States, and recently Russia.174 Those movements capitalized on the United Nations’ disposition toward the accommodation of non-state actors in the international process. Among the very many areas in which indigenous peoples have made some impact, the Rio international environmental agreements are perhaps most notable.175 Similar active participation of indigenous peoples’ organizations in different international fora and negotiations confers legitimacy on a number of international initiatives directed at the indigenous question. Through the efforts of the proliferating non-governmental organizations devoted to indigenous causes, indigenous peoples won the sympathy of some states, notably Belgium, France, Denmark, Norway, and the Netherlands. In addition to the dramatic events that led to the setting up the Cobo Study on the Problem of Discrimination against Indigenous Populations, the support of the then Dutch head of the

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United Nations Human Rights Centre, Theo Van Boven, and that of some European states were instrumental in the establishment of UNWGIP. Added to the support of the Organization of American States (OAS) was the collective interest of European Union states, also attracted to the causes of indigenous peoples. Since the late 1980s, the European Union has adopted a number of resolutions on the violation of indigenous peoples’ human rights.176 Also, the EU has on occasions directed its resolutions and actions to specific indigenous peoples or situations.177 Nowadays, it can rightly be affirmed that ‘[i]ndigenous peoples have increasing support worldwide, in the heartland and capitals of the conquering nations.’178 International developments on indigenous issues are indicative of the hard work of indigenous peoples. In sum, precepts of natural law had sustained the idea that indigenous peoples were subjects of a normative order that applied to all humanity. This position required European jurisprudence to justify the oppression of indigenous populations, a task it has yet to discharge satisfactorily. However, the overthrow of natural law by positivism, which promoted the Westphalian state model, clearly alienated indigenous peoples from international law. The dramatic return to natural law doctrines following developments in the middle of the twentieth century, particularly the founding of the United Nations, has restored indigenous peoples to the centre of the world constitutive process. From the era of denial to one of acquiescence regarding indigenous rights, the world community has turned full circle. State Practice: Sanctioning Indigenous Claims Another legitimating attribute of international indigenous initiatives is the practice of states. Legal and political developments in many of the states with indigenous populations point to a willingness on their part to address aspects of the indigenous question as a matter of legal obligation, both domestically and internationally. However, the positive posturing of states toward indigenous causes may not necessarily reflect the desired improvement in lived realities within the indigenous world. States are wont to make policy proclamations consistent with the tide of international and public opinion but often fall short in terms of implementation. Nonetheless, indigenous strides in international law are inextricably linked to developments within states. Judicial and legal developments in the United States and Canada continue to suggest ‘growing sensitivity towards issues of Indian self-

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preservation and self-determination’179 in varying extent and detail. In addition to freezing the practice of concluding treaties with Indians to halt continued appropriation of Native land since 1871, the U.S. federal government more recently adopted a policy of government-to-government relationship between it and Aboriginal nations. Since the 1990s, significant legislative developments in that country have continued to empower Native self-determination.180 In Canada, an aggregation of judicial,181 constitutional,182 legislative, and general policy initiatives,183 especially since 1982, indicate positive strides in addressing indigenous issues in the Canadian polity. In Australia and New Zealand the story is not different. Since the Mabo decision184 in 1992, which rejected the colonial terra nullius doctrine, the Aboriginal peoples of Australia have been empowered to an unprecedented measure in their relationship with the colonial state. Apart from being an unimpeachable jurisprudence on Native title, Mabo has not only yielded more progressive judicial and legislative consequences in Australia185 but also represents a symbolic jurisprudence for the mitigation of historical injustice done to indigenous peoples. In New Zealand, the Treaty of Waitangi Act of 1975 has revived and amplified the concept of the original colonial treaty of 1840. Enabled by the act, the Waitangi Treaty Tribunal provides a progressive blueprint with which the government addresses Maori land claims and quest for self-determination. The New Zealand High Court characterizes the tribunal as ‘the fabric’ and ‘foundation’ of New Zealand society.186 The tribunal is a key authority on matters relating to the cultural and spiritual values of the Maori. Constitutional and judicial developments in the Americas, particularly Brazil,187 Colombia,188 Venezuela, Ecuador, Peru, Bolivia, Chile, Paraguay, Belize, Mexico, Nicaragua, and Guatemala indicate a rejection of assimilation schemes. In all these countries the question of indigenous recognition, land claims, cultural identity, natural resources, political empowerment, and administrative autonomy has been and continues to be addressed at one level or another.189 Responsive state practice toward indigenous claims in Europe is no different from that in other places. In the European arctic regions of Norway, Finland, Sweden, and Russia, the indigenous Saami or Lappland people continue to assert their indigeneity and to resist marginalization in the polity. Traditional reindeer herding, hunting, and fishing practices are central to the cultural identity of the Saami. Such practices are now part of their protected rights.190

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In Asia, there is a deliberate policy of undermining claims to indigeneity, especially by the two populous countries of India and China.191 Nonetheless, this position increasingly appears untenable. Two examples of state practices highlight the reluctant shift in Asian response to tackling the indigenous question. In Japan, the long-held myth of a monolithic country has ceased to be the official position. A 1997 court decision accorded recognition to the Ainu as a minority indigenous community with special rights,192 which is now affirmed by parliament.193 Similarly, the Philippine Indigenous Peoples Rights Act of 1997 specifically sanctions internal self-determination and indigenous self-government in accordance with the global trend. Because European powers undermined the natural boundaries of traditional African societies by merging or partitioning them arbitrarily under the alien concept of the Westphalian state, the question of indigeneity in Africa is hardly a simple one. Putting that aside, however, we see that there are today notable flashpoints for the discourse of indegeneity in Africa. Often mentioned are the pastoral Maasai of Kenya, the !Kung or Zhun/twasi of the Kalahari Desert (Botswana, Angola, and Namibia), the Pygmies of the Congo, the Tuareg of Mali and Niger, the Nuba of Sudan, and lately the Ogoni of Nigeria. In all these cases, the antecedents are not as clear-cut as they are in the Americas, Northern Europe, Japan, or Australasia. A number of these claims to indigeneity may not withstand scrutiny. Some of the claimants to indigeneity, who are clearly minorities, prefer playing the indigenous card in order to attract global attention, especially in the battle for resource control and environmental accountability.194 Thus, the preference for indigenous claims over minority rights indicates the efficacious nature of international concern over the indigenous question. International responsiveness to indigenous concerns constitutes a standard for the treatment of claimants to indigeneity in Africa. It does not matter that the question of indigeneity remains complex and indeterminate. For instance, the displacement of the pastoral Maasai of Kenya from their hunting and unique traditional lifestyle has become a subject of international interest.195 Consequently, the Kenyan government has strived to mitigate the Maasai plight in accordance with international normative prescription. In Nigeria, it is arguable whether the Ogonis could claim to be indigenous to the exclusion of all other neighbouring nationalities in Nigeria’s Niger Delta. However, the Ogonis have helped in no small measure to draw international attention to the inequity in that country’s natural resource regime. Under that regime,

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the communities in which foreign-exchange-earning petroleum and natural gas resources are exploited do not effectively benefit from the exploitation. The Ogonis have helped to bring to the fore the systematic inequity in the exploitation of Nigeria’s rich petroleum resources. The bulk of Nigeria’s oil comes from areas of minority population whose nationalities are different from Nigeria’s three main ones. Under a 1999 constitutional arrangement, 13 per cent of the national oil revenue is dedicated to resource-bearing states.196 Indeed, irrespective of the ambiguity over the question of indigeneity, no state in Africa today and elsewhere can afford to totally ignore the need to address basic indigenous or minority demands. International Law on Indigenous Peoples: Publicists’ Perspectives In addition to the foregoing trends in state practice, scholarly writings, and opinions, as part of international law, contribute to the discourse on the status of indigenous peoples. Among scholars, there is a consensus that indigenous issues are not fully accommodated by the existing international law on human rights.197 One of the principal motivations for the UNWGIP is the inadequacy of the existing human rights standards to indigenous peoples198 and the imperative for a peculiarly indigenous rights regime. The issue is whether the identified indigenous claims amount to opinio juris,199 that is, whether there is a consensus among states that they are under obligation to recognize certain indigenous claims as binding customary international law.200 A critical evaluation of the debate from the 1980s to the present indicates that there is support for the notion of the existence of opinio juris in relation to the indigenous question.201 This represents a subtle but significant shift from the position that all developments concerning indigenous issues are normative and not binding.202 Positive and bold state practice upholding indigenous claims render a strong support for this position. Further support is drawn from examples of actual prescriptions contained in the ILO Convention No. 169, responsive institutional practices like that of the World Bank, regional developments such as the initiatives of the Inter-American Commission on Human Rights ‘toward juridical operationalization of indigenous peoples’ programs’203 within the framework of the OAS Draft Declaration on the Rights of Indigenous Peoples. This is not to mention the UN Draft Declaration on the Rights of Indigenous Peoples, which represents ‘a manifestation of movement in a corresponding consensual nexus of opinions on the subject.’204

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Drawing from his 1999 global survey of domestic systems’ response to indigenous demands,205 Weissner enthuses: The results of this global comparative and international legal analysis are encouraging whether by genuine insight, or under more or less pressure, ruling elites have modified their laws throughout the Americas and beyond. They decided that indigenous peoples have a right to their distinct identity and dignity and the governing of their own affairs … Treaties of the distant past are being honored and agreements are fast becoming the preferred mode of interaction between indigenous communities and the descendants of the former conquering elites.206

That there exist among states and other actors in international law new common grounds about minimum standards that should govern behaviour toward indigenous peoples207 appears to be beyond question. Among virtually all leading publicists, there is a consensus as to the content of indigenous rights. A synthesis of writings in this field shows the core demands to include the following: (a) cultural protection, including preservation of indigenous spirituality, language, systems of justice, traditional ways of life and so forth; (b) recognition of the rights to economic and social welfare; (c) rights to self-determination and forms of political empowerment and autonomy; (d) claims to ancestral lands or territories; and (e) insistence on the honouring of historic treaty commitments by the colonial powers. Some of these categories of rights are also entrenched, to various degrees, in principal instruments on indigenous rights. The inescapable conclusion is that there is in existence today a customary international law on indigenous peoples whose content is also fairly reflected in conventional treaty law on the subject. It does not matter that developments on the indigenous question continue to evolve. International law itself is an evolutionary phenomenon. Desirable as that may be, it does not require a convention on indigenous rights before there could exist an international law on indigenous peoples. At present, the treaty law on a minimum standard of indigenous rights contained in ILO Convention No. 169 binds its ratifiers, which currently include states with significant indigenous populations, such as Argentina, Bolivia, Brazil, Colombia, Costa Rica, Denmark, Dominican Republic, Ecuador, Fiji, Guatemala, Honduras, Mexico, the Netherlands, Norway, Paraguay, Peru, and Venezuela. Apart from the ILO Convention, however, there are other international treaties, mainly on the

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environment, that create obligations on aspects of indigenous claims. Yet in light of state practices, corroborating opinion of scholars, and other developments, especially with regard to the protection of indigenous knowledge, which the next chapter addresses, there is today an elaborate body of customary international law on indigenous peoples. In effect, the evolution of the law on indigenous people follows a diverse and complex legal trajectory. It derives from both treaty and customary international law and applies to states, even those not parties to the relevant conventions. Now that the existence of an international legal regime on indigenous peoples has been established, the next chapter will demonstrate that the protection of indigenous knowledge, including other non-Western knowledge forms possessed by categories of peoples who are not technically indigenous, is a component of international law on indigenous peoples. Subsequently, chapter 4 will focus specifically on the epistemological and sociocultural context and content of traditional knowledge of plant-based therapy as a key aspect of protected indigenous knowledge in order to lay the foundation for exploring the difficulties posed by the use of the patent regime of intellectual property rights in the context of traditional medicine.

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3 International Law and Traditional Knowledge of Plant-Based Therapy (TKPT)

The previous chapter concludes by establishing that there is an international legal regime with respect to indigenous peoples. This chapter argues that the protection of indigenous knowledge in general is a component of that regime. Specifically, it identifies the concept of traditional medicine or traditional knowledge of plant-based therapy (TKPT) as a component of traditional knowledge and examines the extent to which it is part of the international legal regime on indigenous peoples. This chapter explores the phenomenon of traditional medicine within the texts of some legal and quasi-legal instruments and other policy developments relating to international law on indigenous peoples. This juridical excursion lays the foundation for the investigation, in chapter 4, of the sociocultural context of TKPT in contrast to Western biomedicine. Indigenous Knowledge as Part of International Law on Indigenous Peoples General Conceptual Analysis This section examines the extent to which indigenous or traditional knowledge is part of the international legal regime on indigenous peoples. Because of their holistic conception of phenomena, most indigenous or non-Western peoples’ knowledge systems are inextricably linked to all the subjects of indigenous claims. Thus, indigenous knowledge as a vehicle of indigenous expression is implicated under the rubrics of cultural protection, land rights, individual and welfare rights, and, most important, the right to self-determination.

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Self-determination is an open-ended and amorphous concept. According to Kingsbury, ‘[S]elf-determination has long been a conceptual morass in international law, partly because its application and meaning have not been formulated fully in agreed texts.’1 Another reason, according to Kingsbury, for which self-determination remains a conceptual quagmire is that it reinforces and conflicts with other important principles and specific rules of international law, even as its specific practice in international law ‘does not measure up very well to some of the established textual formulations.’2 In relation to indigenous peoples, the concept has shifted from the logic of decolonization or end-state emphasis (as was the case in the Third World) to a relational approach. Today its status is in a state of flux and is subject of continued negotiation. From the original emphasis on the right of political participation, self-determination between indigenous peoples and the colonial powers is now explored in the context of cultural, social, economic, and developmental relationships.3 Article 3 of the UN Draft Declaration on the Rights of Indigenous Peoples provides that ‘[i]ndigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’4 Self-determination is at the very heart of all indigenous claims. It covers a wide range of indigenous aspirations in virtually all situations, but significantly in respect to land. Without the latter, indigenous peoples do not have the benefit of optimal enjoyment of their ‘cultural freedom and cultural integrity.’5 In the observation of Kingsbury, ‘[I]n their grounds or justification, self-determination and other [indigenous] rights are not sharply distinct; depending on the facts of a particular case, the realization of other rights should be regarded as realizing purposes underlying self-determination.’6 The indigenous epistemic world view – which is based on ecological sanctity, including associated spiritualism, rituals, and belief systems – is a component of all the categories of indigenous claims in international law. That world view perceives relationships between phenomena as fundamentally holistic. It encompasses every natural and metaphysical experience in the practice of indigenous cultures/traditions and interpretation of the world. Thus, land claims, cultural preservation claims, treaty rights, and so forth all have their significance in the context of indigenous epistemology and values. The realization of these rights is part of the justification for the indigenous quest for selfdetermination. Indigenous rights are attained by unfettered practices

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based on indigenous knowledge. Culture is interwoven with knowledge in the way both are generated and transmitted.7 Thus, the protection of indigenous knowledge underlies all the five separate but inextricably linked subjects of indigenous claims in international law outlined in the section titled ‘International Law on Indigenous Peoples: Publicists’ Perspectives’ in chapter 2. Apart from the general conceptual framework, there are specific contexts in which international law on indigenous peoples has incorporated indigenous knowledge. Nonetheless, the concept of indigenous knowledge is scattered through a litany of instruments. These include legally binding treaties and other less consequential sources of international law, such as results of international studies, resolutions of relevant forums, conferences, declarations, and other regime-building initiatives. I discuss a number of specific instruments and relevant developments, without being exhaustive, that represent strands of international legal regime building on traditional knowledge. Before we focus on the specific regimes, the following observations are compelling. Indigenous Knowledge in the Fourth and Third Worlds Provisions for the protection of knowledge in a number of regimes apply not only to the knowledge of indigenous peoples of the enclave territories, also known as the Fourth World peoples in Canada, Australia, New Zealand, Polynesia, the United States, the Americas, and so on. There is a discernible accommodation of other categories of knowledge holders, whether they are identified as indigenous or not. The UN decolonization process, through the saltwater thesis, did not extend to indigenous peoples of the enclave territories because of settler nonwithdrawal. In part, this historic fact was instrumental to the different accounts of colonialism between indigenous peoples of the enclave territories and other non-Western colonized peoples that experienced settler withdrawal. However, generally shared world views among colonolized peoples around the globe have given rise to a near common interest in the forging of alliances for the protection of their knowledge systems. Save for regionally specific instruments, it is not practicable to talk about indigenous or traditional knowledge that draws a strict distinction between the peoples of the Third and Fourth Worlds. This, however, does not apply when reference is made to the regime structures or specifics of the knowledge among constituent nationalities. Absent historical and political dichotomies, that demarcation gets blunted, espe-

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cially in the discourse about the protection of non-Western knowledge forms. However, Rosemary Coombe has identified different objectives or motivations as they relate to categories of claimants to indigenous knowledge. She notes: Peoples who are already internationally recognized as indigenous appear to be more interested in making claims with respect to indigenous knowledge subservient to their larger claims for self-determination … whereas others whose claims to indegeneity are nascent and largely unacknowledged and those who must make their claims as communities who embody ‘traditional lifestyles’ … appear to be more oriented to ascertaining how (CBD) provisions [on the protection of knowledge] might provide them with sources of social legitimation, political leverage and alternative sources of income.8

Coombe argues that the Third World local knowledge holders, including traditional healer groups, development and NGO groups, identify with the protection of knowledge, mainly as a means of livelihood and a source of alternative income.9 The missing motive here appears to be the connection to self-determination. Despite the perceived differences in motives, the important point is that the strict political divide between indigenous peoples and other local communities of the Third World ceases to be sustainable at the level of discourse about knowledge, but the peoples may have different interests or emphases. Such interests are dictated by the political contexts in which the peoples operate. In one context, indigenous/traditional knowledge may be more an aspect of self-determination and survival. In another, it may be a question of economic empowerment. The two may not necessarily be separated. It is a matter of relative emphasis. In many non-Western world views, the fact remains that the understanding of relationships from which all knowledge forms are generated is an integral part of a people’s identity, be they indigenous or not. Indigenous Knowledge under the United Nations Framework Specific provisions for the protection of indigenous knowledge constitute a vital feature of the new international law on indigenous peoples. My brief tour du monde begins with the United Nations framework, which is an international forum for authoritative normative discussion.

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Indigenous peoples have always availed themselves of the benefits of the international human rights regimes both within and outside the UN framework. The 1948 Universal Declaration of Human Rights (UDHR)10 in article 27 provides that ‘[e]very one has the right to freely participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.’11 From chapter 1, we have seen that science has a multicultural character. For practical purposes, it is a way of knowing, an aspect of or even a synonym for knowledge. Thus, article 27 provides an authoritative protection of indigenous knowledge forms or ways of knowing. But it is not as simple as it seems. Indigenous peoples have argued that their understanding of community is of a distinct indigenous community, not the state.12 They seek a definition of a community in which they will have unfettered right to cultural enjoyment and identity both within an exclusively indigenous setting and the larger state. A creative construction of the open-ended right to self-determination under the International Bill of Rights13 is amenable to this thinking. Article 27 of the UDHR simply protects indigenous knowledge, albeit as an aspect of the right to self-determination. By numeric coincidence of sorts, article 27 of the International Covenant on Civil and Political Rights (ICCPR)14 serves also as a basis for addressing indigenous issues, and indirectly of indigenous knowledge in the context of culture. This article makes no direct reference to indigenous knowledge. Nonetheless, it refers to the right to the enjoyment of culture, profession, and practice of religion, and use of language, all of which are components of indigenous knowledge. Addressed specifically to minorities, the United Nations Human Rights Committee adopts an expansive understanding of the provision, thus amply extending its guarantees to indigenous peoples. This is so even though indigenous peoples rightly resist being classified as minorities. Indeed, article 27 is acknowledged as ‘a basis and justification for addressing indigenous issues.’15 Indigenous Knowledge under the ILO Convention No. 169 (1989) Convention No. 169 is still perhaps the most authoritative, even though it is no longer the ‘[m]ost concrete manifestation of the growing responsiveness to indigenous demands.’16 It is a legally binding treaty on those countries that have ratified it. The Convention makes concrete and elaborate provisions on the subject of indigenous knowledge. This derives either directly or indirectly from its provisions on the core

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indigenous issues it deals with. The convention outlines the minimum standard of indigenous rights, leaving ample room for continued improvement. It is designed to enable indigenous peoples to live and progress as distinct communities with their cultural values and legal status, especially as they relate to land, internal structures, environmental management, security, and so forth. Given the convention’s binding status, its provisions are quite significant, especially in shedding light on the normative questions relating to indigenous knowledge. The following discussion is limited to provisions directly concerning indigenous knowledge. The relevant articles include 2(a) and 4(1), 5(a) and (b), 7(1), 8(1) and (2), 13, and 15, which commit governments to pursuing policies conducive to socio-economic and cultural rights, including religious, institutional, customary, legal, environmental, community-based industrial, and traditional practices of indigenous peoples. Article 25 hinges indigenous health care on the primary/community model. It supports a health policy based on indigenous cultural conditions: traditional preventive care, healing practices and medicines, without compromising links with other levels of health care services. Similarly, under the convention, the sanctioned indigenous education model is one based on ‘their histories, their knowledge, and technologies, their value systems ...’17 Overall, the ILO Convention No. 169 makes ample provisions for the promotion and protection of virtually all aspects of indigenous knowledge at both policy and ideological levels. The Rio Declaration and Agenda 21 Based on the 1992 United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, and reaffirmed in 2002 at the Johannesburg Earth Summit, dubbed Rio+10, modern international environmental law incorporates indigenous knowledge concepts in its principles.18 The Rio Earth Summit produced significant environmental instruments in the form of both hard and soft international law.19 The Rio Declaration sets out the international consensus on environmental management or stewardship. Of all its 27 principles, principle 22 deals squarely with indigenous knowledge. This principle, now the received wisdom in international environmental instruments, relates indigenous knowledge or traditional practices to other local communities: ‘Indigenous peoples and their communities, and other local communities have a vital role in environmental management and development because of

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their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.’20 Next on the soft law front is Agenda 21, which also resulted from Rio. It articulates international consensus on global environmental policy framework and action for sustainable development in the twenty-first century. It makes an elaborate provision on indigenous knowledge under its famous chapter 26.21 That chapter’s provisions are consistent with principle 22 of the Rio Declaration. In paragraph 1, it refers to indigenous questions in international law and acknowledges preexisting and current efforts that are already addressing them, namely, the efforts of ILO and UNWGIP. It recognizes that indigenous peoples ‘have developed over many generations of holistic traditional scientific knowledge of their land, natural resources and environment.’22 Thus, via chapter 26, Agenda 21 incorporates indigenous rights within global environmental thinking anchored on the concept of sustainable development. Indigenous Knowledge and the Convention on Biological Diversity The Convention on Biological Diversity (CBD), again an offshoot of Rio and a strategic component of the United Nations Environmental Program (UNEP), squarely addresses indigenous knowledge in accordance with the approach of article 29 of the UN Draft Declaration on the Rights of Indigenous Peoples. It is, however, detailed in its provisions concerning issues relevant to biodiversity conservation. It is not primarily a convention on indigenous peoples. Nevertheless, unlike the Draft Declaration discussed below, the CBD, like the ILO Convention No. 169, has the status of a binding treaty.23 To that extent, its provisions on indigenous knowledge are significant. The Convention on Biological Diversity framework has become the springboard for the evolution of national and regional initiatives designed to pursue its stated objectives, namely, ‘conservation of biodiversity, sustainable use of its components and the fair and equitable sharing of the benefits ...’24 In pursuit of these objectives, the CBD gives significant regard to indigenous knowledge. Relevant provisions begin with paragraph 12 of its preambular text, which accords recognition to the ‘close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innova-

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tions and practices relevant to the conservation of biological diversity and sustainable use of its components.’25 Articles 8(j), 10(c), 17(1)(2) and 18(4) spell out the convention’s vision of indigenous knowledge in furtherance of its preambular declaration and its larger objectives under article 1. Article 18(4) requires parties to ‘encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of this Convention.’ Clearly, the most important provision of the CBD on indigenous knowledge is article 8(j). It reads: Each Contracting Party shall, as far as possible and as appropriate: ... (j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote wider application with the approval and involvement of holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.26

Article 8(j) is the core provision for effecting recognition of the contributions of indigenous peoples and their knowledge pursuant to the Convention’s objectives. In practical terms, article 8(j) is a statement of guidelines. It leaves matters of detail regarding its implementation or interpretation to both national governments and the implementing body of the Convention, the Conference of Parties (COP).27 Because of the centrality of article 8(j) to the CBD, its interpretation and implementation are perhaps the most important preoccupations of the COP since its third meeting in 1996.28 That meeting established the ongoing intersessional process for the purpose of advancing further works on the implementation of article 8(j). International bodies and interests focusing on traditional knowledge now coalesce on the platform of article 8(j).29 Detailed discussion of these developments is reserved to chapter 6. The United Nations Draft Declaration on the Rights of Indigenous Peoples Even though it is not a binding instrument like ILO or the CBD, the Draft Declaration is generally perceived to reflect to a large degree a codification of extant customary international law on indigenous peoples. The momentum it currently enjoys appears to somewhat overshadow

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the superior juridical status of Convention No. 169 as the most concrete manifestation of international responsiveness to indigenous demands. It is perhaps the most comprehensive articulation of indigenous claims yet. It can be described as the charter of indigenous peoples. To that extent, its legitimacy is unimpeachable, given the highly participatory process that led to it, even though it is not yet a binding instrument. The declaration builds from established minimum consensus on indigenous demands as articulated by the ILO Convention No. 169. Its perspective on indigenous knowledge has been outlined in chapter 2 (‘The Indigenous Question in International Law’) and chapter 3 (‘Traditional Therapy Under the United Nations Draft Declaration’) and bears no repeating. A significant feature of that document is that it underscores the fusion of culture with knowledge. Its elaborate provisions on preservation of indigenous cultural values aim at the empowerment of indigenous knowledge systems. In unequivocal terms, article 12 makes a direct link between culture and knowledge by proving that ‘[i]ndigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archeological and historical sites, artifacts, designs, ceremonies, technologies, and visual and performing arts and literature, as well as the right to the restitution of cultural and intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws and traditions.’30 Perhaps the most important provision of the Draft Declaration on the subject of indigenous knowledge is article 29: ‘Indigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts.’31 This provision associates various facets of indigenous knowledge directly with the concept of intellectual property rights. It endorses the multicultural character of science and technology. By so doing, it empowers indigenous knowledge by overriding the traditional barriers of scientific exclusion and epistemic parochialism. Article 29 outlines virtually all the currently contested areas on indigenous knowledge.32 Subsequent international instruments have advanced this progressive understanding of indigenous knowledge.33

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United Nations Bodies: WIPO, UNESCO, and UNDP Since the 1980s, almost all United Nations bodies have been involved in the study and exploration of modalities for the protection of traditional knowledge at one level or another. Specific mention can be made of the World Intellectual Property Organization (WIPO), the United Nations Educational, Scientific and Cultural Organization (UNESCO), and the United Nations Development Program (UNDP). In 1985, WIPO and UNESCO convened a meeting of experts on the subject of protection of expressions of folklore.34 The WIPO/UNESCO effort resulted in the adoption of the WIPO/UNESCO Model Provisions for National Laws for the Protection of Folklore against Illicit and Other Prejudicial Actions. The Model Provisions serve as a framework for some national regimes. The WIPO/UNESCO collaboration took a significant turn in 1997 at the Joint Forum on the Protection of Folklore, which was held in Phuket, to explore ‘[t]he issues concerning the reservation and protection of expressions of folklore, intellectual property aspects of folklore and the harmonization of different regional interests.’35 At the Forum, the term ‘folklore’ came under attack as not only derogatory but also inadequate as a reference to all aspects of cultural heritage, resulting in a switch in nomenclature from folklore to a broader traditional knowledge. Traditional knowledge embraces traditional knowledge of plants and animals in medical treatment and as food. Consequently, the discourse would shift from the environs of copyright or copyright-plus terms in which folklore is typically discussed to those of patent law and biodiversity rights.36 The switch to traditional knowledge has since been sustained so that future works in the field strive to embrace an understanding of folklore that encompasses all traditional knowledge.37 The shift from folklore to traditional knowledge is described as ‘a movement from the common grounds of the two organisations.’38 Through other initiatives39 the WIPO/UNESCO collaboration has now achieved a common and broad understanding of traditional knowledge that encompasses all folkloric expressions. The preference for a common and broad conceptual approach to indigenous knowledge is based on an indigenous holistic world view of phenomena. It is argued that the narrowness of folklore, or the fragmentation inherent in different intellectual property categories, does a disservice to the holistic thrust of indigenous knowledge. The Western

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concept of intellectual property is viewed as too sectional, parochial, and fragmentary.40 In 1998–9, as part of the global focus on indigenous people, and in furtherance of international law’s protection of indigenous knowledge, WIPO embarked on the process of identification and exploration of intellectual property needs and expectations of traditional knowledge holders. This project led to a series of nine fact-finding missions covering all regions of the world. The fundamental plank of the WIPO initiative is that the dominant Western forms of intellectual property rights are inadequate to protect traditional knowledge. Thus, the missions were designed to study current approaches to, and future prospects for, protecting the intellectual property rights of traditional knowledge holders. The WIPO scheme is significant as part of the ongoing regime-building initiative for the protection of indigenous knowledge in international law. It needs a little exploration in order to underscore the inherent conceptual issues in the protection of indigenous knowledge as well as the general pattern of the debates. The missions identified a number of needs and expectations. Two are relevant for the purpose of this discussion. According to the executive summary of the final report of WIPO’s fact-finding missions, one of the needs and expectations is ‘the study of customary law and informal intellectual property regimes in local and traditional communities, including conclusions that are relevant for the formal IP system.’41 The other is part of long-term needs and expectations. It refers to ‘[t]he possible development of new tools to protect traditional knowledge that is not protected by the existing IP tools, the elaboration of an international framework for TK protection using, inter alia, the 1982 WIPO-United Nations Educational, Scientific and Cultural Organization Model Provisions for National Laws on the Protection of Exploration of Folklore Against Illicit Exploitation and Other Prejudicial Actions as a possible foundation and development of a sui generis system of community or collective rights to protect TK.’42 The WIPO’s initiative on traditional knowledge and the elaborate work at the COP meetings of the CBD on article 8(j) are works in progress. These are highlighted in chapter 6. Both organizations need to pay close attention to credible criticisms of the initiatives.43 For instance, Coombe alludes to a perceived conflict in WIPO’s move in the direction of a new intellectual property regime and CBD’s inclination toward making ‘existing intellectual property regime more transparent, accountable and equitable’

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for the protection of traditional knowledge.44 Despite perceived differences in approach, protection and recognition of traditional knowledge is now a concerted project in which many institutions are involved in the foundational stage of what promises to be a long-drawn-out process in international law and policy. The options are still very much open. For instance, despite its shortcomings, the WIPO report has set the tone for continuing discussions in different regional, national, and international fora. That report is crucial in a number of respects. Among others, it sets the tone for the forging of future policy on traditional knowledge. Similarly, the CBD initiative on article 8(j) is a work in progress. The WIPO and CBD initiatives recognize the unimpeachable consensus that exists about the imperative for local regime content in the protection of traditional knowledge. Coombe is of the same view when she writes, ‘It is important that the WIPO and the CBD have recognized that indigenous customary law has to be respected when considering the use of traditional knowledge and that indigenous customary law principles provide legitimate juridical resources for a consideration of alternative forms and norms of property. The promise of a cross-cultural conversation in the international intellectual property arena that is thereby posed cannot be indefinitely postponed.’45 Apart from the WIPO/UNESCO (including the CBD) effort, another UN body involved in exploration of modalities for the protection of traditional knowledge, as part of international legal regime building and policy initiative, is the United Nations Development Program. The UNDP identifies with the importance of traditional knowledge in sustainable human development. To this end, since 1999 it has embarked on a review of its activities, policies, and projects in order to bring them in conformity with indigenous aspirations along the lines of the United Nations Draft Declaration on the Rights of Indigenous Peoples. In doing this, UNDP works closely with indigenous organizations and peoples. Wiessner reports that it has developed a project titled ‘Support to the Preservation of Indigenous Peoples’ Knowledge and the Protection of Indigenous Intellectual Property.’46 The project is designed to ‘identify strategies and means for promoting and protecting indigenous knowledge, intellectual and cultural property, and customary practices.’47 An instructive point arising from the foregoing developments within these UN agencies is that protection of indigenous knowledge is now an important preoccupation of international legal process and policy initiatives.

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Draft Principles and Guideline on Indigenous Heritage In 1990 the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities commissioned a working paper on the question of ownership of the cultural and intellectual property of indigenous peoples. The project resulted in the 1995 Draft Principles and Guidelines for the Protection of Heritage of Indigenous Peoples, authored by Erica-Irene Daes.48 The importance of this document for this analysis derives from two issues. First, its central thrust is that indigenous customary laws and practices should determine ownership, guardianship, and interpretation of all aspects of indigenous heritage, including culture, arts, and science. Second, much along the lines of holism, it defines indigenous heritage in a very broad sense as ‘everything that belongs to the distinct identity of a people and which is theirs to share, if they wish, with other peoples.’49 This holistic approach tallies with indigenous interests that are opposed to a fragmented approach to indigenous knowledge and to addressing its appropriation.50 OAS Draft Declaration on the Rights of Indigenous Peoples Recognition of indigenous knowledge in international law is also evident in many regional initiatives. Perhaps the most notable of these regional initiatives is the Draft American Declaration on the Rights of Indigenous Peoples.51 It merits a discussion separate from the general regional trends. In the context of knowledge, relevant articles are those securing the rights to cultural integrity, respect for indigenous ways of life, institutions, practices, beliefs, philosophy, and value systems.52 The Organization of American States (OAS) Draft makes detailed provisions on indigenous knowledge relating to health and well-being under article XII(1-4). It provides, in part, that indigenous peoples have the right to legal recognition and practice of their traditional medicine, treatment, pharmacology, health practices, and promotion, including preventive and rehabilitative practices. Indigenous peoples have the right to the protection of vital medicinal plants, animals, and minerals in their traditional territories.53 The OAS Draft devotes article 20 to intellectual property rights. It provides: [1]. Indigenous peoples have the right to the recognition and full ownership, control and protection of their cultural, artistic, spiritual, technologi-

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cal and scientific heritage, and legal protection for their intellectual property through trademarks, patents, copyright and such procedures as established under domestic law; as well as to special measures to ensure them legal status and institutional capacity to develop, use, share, market and bequeath that heritage to future generations.54 [2]. Indigenous peoples have the right to control, develop and protect their sciences and technologies, including their human and genetic resources in general, seed, medicine, knowledge of plant and animal life, original designs and procedure.’55

Other Initiatives In addition to governmental and intergovernmental initiatives, indigenous peoples have capitalized on the burgeoning global recognition of their rights over their traditional knowledge. They realize that international recognition of their intellectual and cultural property depends largely on their efforts.56 There has been a remarkable increase in international solidarity through conferences, workshops, declarations, and resolutions on the subject of indigenous intellectual property rights. Arising from these fora are suggestions (as opposed to juridical instruments) for normative options for the protection of traditional knowledge.57 Two notable global initiatives illustrate this trend. The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples is one of them. Convened by the nine indigenous nations of Mataatua in the Bay of Plenty Region of Aotearoa, New Zealand, in 1993, it was the first international conference of its kind. The Declaration, among other things, associates the protection of indigenous knowledge with self-determination.58 The second initiative is the 1994 statement issued by the International Consultation on Intellectual Property Rights and Biodiversity. The consultation was at the instance of the Coordinating Body of the Indigenous Peoples of the Amazon Basin (COICA). While endorsing the Mataatua Declaration, the COICA summit is sharply critical of the dominant Western conception of intellectual property and the prevailing system.59 It warns against the distortion of indigenous systems as a way to bring them into conformity with the existing intellectual property regime.60 In addition to the two initiatives, there has been since 1992 an increased coalition of indigenous peoples in the pursuit of juridical or

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other beneficial status for indigenous knowledge. They include, but are by no means limited to, the 1992 Penang Conference, which formulated the Charter of Indigenous-Tribal Peoples of Tropical Forests (CITP); World Conference of Indigenous Peoples on Territory, Environment and Development, Kori-Oca, Brazil, of the same year, which authored the Indigenous Peoples Earth Charter; Julayinbul Conference on Cultural and Intellectual Property, Jingarrba, Australia, 1993, which issued the Julayinbul Declaration. These mainly non-governmental initiatives share the same central themes, which are based on the UN Draft Declaration on the Rights of Indigenous Peoples.61 Simply stated, the aim of these and similar initiatives is to ensure that indigenous knowledge is recognized as an integral part of the peoples’ aspiration to self-determination. These agitations are perhaps better appreciated in the light of international momentum for legal protection of indigenous knowledge. Even though having no legal force, these declarations constitute the regime-building component of international law on indigenous peoples. In the wake of the CBD, domestic legal regimes or policies on access to genetic resources based on recognition of traditional knowledge have continued to emerge as a matter of state practice. This is mainly in response to the objectives of the Convention, especially along the lines of provisions of article 8(j). Developments from countries such as the Philippines,62 Brazil, Australia,63 New Zealand, Nigeria,64 Costa Rica,65 South Africa,66 Laos PDR,67 Bangladesh, Chile, Egypt, India, Iraq, Jordan, Pakistan, Panama, and so on are indicative of state practice that is favourably disposed to the recognition of traditional knowledge. It is inconceivable today for non-state actors such as multinational corporations to engage in bioprospecting activities without taking into account the role of indigenous knowledge. This was not conceivable fifteen or so years ago. There are now in place many contractual models or terms of engagement between public institutions, corporations, and research organizations involved in securing vital genetic resources with the help of indigenous knowledge. Notable ones include the Merck/ INBio model – an agreement between the government of Costa Rica and the American pharmaceutical company Merck – that provides incentives, including royalties, for the use of local genetic resources.68 There is also the U.S. National Cancer Institute (NCI) initiative, which now requires the licencees of its locally sourced research discoveries to enter into benefit-sharing agreements with the source countries and

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holders of local knowledge. Another example is the now cancelled International Cooperative Biodiversity Group (ICBG). The ICBG was international multi-party research collaboration by U.S. institutions, including the National Institutes of Health, the Agency for International Development, and the National Science Foundation, as well as other private corporations and their Third World counterparts. It targeted biodiversity conservation projects, and the discovery of new drugs through natural products. Even though it has been under clouds of political controversy, the ICBG encouraged the sharing of royalties among collaborators, including holders of traditional knowledge. Lastly, there is the practice of prospecting for new drugs by the exclusive use of traditional knowledge of local communities. This practice is often credited to the moribund American corporation Shaman Pharmaceutical Company. The Shaman approach had different schemes through which it rewarded knowledge holders and their communities.69 Despite their mixed fortunes, the ICBG and Shaman initiatives are significant in shaping future and ongoing trends in regard to genetic resources access and benefit sharing. Although few of the initiatives enumerated here predate the CBD,70 the latter has influenced the advent of a culture of corporate and institutional responsibility over indigenous knowledge. Even where no local regulation yet exists, corporations and institutions are inclined, as a matter of ‘best practice,’ or ethics, to follow a standard of recognition or access regime that reflects the CBD’s objectives.71 Regional Trends In addition to the OAS Draft Declaration, there are other developments at regional levels. For instance, the Andean Pact countries (Bolivia, Colombia, Ecuador, Peru, and Venezuela) have initiated a regional access regime that emphasizes the integrity of local knowledge. In Africa, the African Union (formerly the Organization of African Unity) countries have been working on a regional access regime based on the concept of recognition of traditional knowledge. This has yielded the 1998 draft African Model Legislation for the Recognition and Protection of Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources. A similar initiative in the Association of South East Asian Nations (ASEAN) bloc resulted in the 2000 draft ASEAN Framework Agreement on Access to Biological and Genetic resources.72 Kate and Laird report that since 1999, the

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South Pacific Regional Environmental Program has mooted the idea of initiating a regional access regime that aims at the recognition and protection of traditional knowledge.73 In 2000 the Pacific Forum raised a draft of Model Law for the Protection of Traditional Knowledge Innovations and Practices.74 The ongoing debate over an appropriate intellectual property regime for traditional knowledge represents a concerted quest for the juridification of traditional knowledge. A number of sui generis options, such as traditional resource rights, community intellectual property rights, traditional cultural and intellectual property rights, and other contractual models for the protection of local knowledge are part of the global brainstorming project for the protection of indigenous knowledge.75 All of these are going on within a broad network of international cooperation among indigenous and local communities, and moderated under the framework of burgeoning international regimes such as the CBD, WIPO, UNESCO, WHO, UNDP, FAO, several regional initiatives, and, reluctantly, the World Trade Organization (WTO).76 At the end of this tour du monde, pertinent conclusions are obvious. Indigenous knowledge is now recognized in virtually every normative plank for establishing the existence of international law. Thus, international law on indigenous peoples, the existence of which is established in the last section of chapter 2, is not complete without the subject of indigenous knowledge. Protection of indigenous knowledge is an integral part of that regime. The concept of ‘knowledge’ invoked is not limited to indigenous peoples in the strict sense. Even though there are perceived differences in interests between indigenous peoples and other holders of local knowledge in their quest for recognition of their knowledge, they share a commonality of understanding that traditional knowledge is a vital aspect of their cultural identity. It is plausible to argue that just as there is an international law on indigenous peoples, there is today an international legal regime for the protection of indigenous knowledge within the broader discourse of the indigenous question in international law. The next section isolates traditional medicine, or TKPT, as a specific genre of indigenous or traditional knowledge. Focusing on the multifaceted sources of the international legal regime on indigenous peoples and knowledge, it examines the extent to which traditional medicinal knowledge and practices are protected in international law. In essence, the rest of this chapter explores the international juridical framework for the protection of traditional medicine.

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The Protection of Traditional Therapeutic Knowledge There are few direct provisions on indigenous therapeutic knowledge in relevant international instruments on indigenous peoples. There are even fewer such provisions that make specific references to the use of plants in indigenous therapy. This is understandable. Indigenous knowledge is intertwined with indigenous cultural practices. Hence, the protection of the knowledge involves the protection of all its cultural manifestations and institutional representations. These include the institutions of health, religion, education, and economic development as aspects of indigenous self-determination. They all implicate indigenous therapeutic practices. For instance, the practice of traditional therapy has educational, religio-cultural, and economic undertones in the preservation of indigenous cultural identity. In specialist legal and institutional regimes such as the CBD,77 the Convention for the Protection of New Varieties of Plants (UPOV),78 the Food and Agricultural Organization (FAO), the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRA) and its precursor, the International Undertaking on Plant Genetic Resources (IUPGR),79 the focus is on biodiversity conservation, protection of plant genetic resources, food, agriculture, and so forth. Nonetheless, the dual role of plants as food and medicine links such regimes to uses of plants in therapeutic contexts. Therefore, even though there is scant mention of therapeutic knowledge in a number of relevant instruments, indirectly there are provisions regarding such knowledge forms as integral aspects of the peoples’ cultural and institutional lives. Apart from the general guarantee of the right of participation in the cultural, religious, artistic, and scientific life of the community under the International Bill of Rights,80 there are provisions in other instruments referring directly to indigenous therapeutic knowledge, practices, and institutions of health. I consider three such instruments to determine if there is any discernible pattern in their provisions. The three represent the plural fronts in the evolution of international law on indigenous peoples that we saw in chapter 2. The first, ILO Convention No. 169, is a treaty regime. The second is the UN Draft Declaration on the Rights of Indigenous Peoples. Although not a treaty, it represents a crucial development toward consensus on customary international law on indigenous peoples. The last is the OAS Draft Declaration, which not only serves a similar purpose as the UN Draft but also represents the trend in regional initiatives toward the protection of indigenous knowledge.

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Finally, I explore the global policy regime on traditional medicinal knowledge under the auspices of the WHO. That organization has not initiated any treaty on the subject of traditional or indigenous therapeutic knowledge. Nonetheless, the WHO remains the most authoritative international normative platform for global public health policy of which traditional therapy is a crucial aspect. Therefore, its policy orientation toward traditional therapy and the capacity of such a policy to encourage favourable state practice toward the recognition of traditional medicine merit discussion in some detail. In other words, debate over the status of traditional medicine as an aspect of indigenous knowledge in international law is incomplete without exploring the WHO initiative in that regard. Traditional Therapy under the ILO Convention No. 169 (1989) Under the title of ‘social security and health,’ part 5 of the ILO Convention No. 16981 includes provisions recognizing traditional therapeutic knowledge. The Convention’s objective on this count is the provision of adequate health services as a step toward the attainment of the ‘highest standard of physical and mental health.’82 The prescribed means of achieving this objective is ‘community-based’83 and ‘primary health care’84 services. In supporting this approach, the Convention encourages its pursuit as part of other levels of the health care services prevailing in each state. Nonetheless, the convention enjoins indigenous peoples to design and take control of their health services.85 According to the Convention, state health planning and administration should be done with indigenous collaboration. Such planning must ‘take into account the peoples’ economic, geographic, social, and cultural conditions as well as their traditional preventive care, healing practices and medicines.’86 Finally, in somewhat repetitive tone, the Convention stipulates that ‘the provision of such health services shall be co-ordinated with other social, economic and cultural measures in the country.’87 The Convention makes no specific provision with regard to the use of plants in indigenous therapy, but the subject is incorporated by the Convention’s reference to social and cultural conditions relating to traditional healing practices and medicines. Traditional Therapy under the United Nations Draft Declaration The UN Draft Declaration on the Rights of Indigenous Peoples88 goes a little further than Convention No. 169 and associates indigenous health

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with the right to development. Article 23 provides that ‘[i]ndigenous peoples have the right to determine and develop priorities and strategies for exercising the right to development. In particular, indigenous people have the right to determine and develop all health, housing and social programmes affecting them, and as far as possible, to administer such programmes through their own institutions.’ Article 24 makes specific reference to traditional plant-based therapy by guaranteeing indigenous peoples the right to ‘[t]heir traditional medicines and health practices, including the right to the protection of vital medicinal plants, animals and minerals.’89 It amplifies the reference to plant-based therapy in the context of its provision on intellectual property rights under article 29. Through this article, it encourages measures designed to protect indigenous ownership and control of intellectual property rights over ‘[i]ndigenous sciences, and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of properties of fauna and flora …’ Finally, in almost the same manner as Convention No. 169, the UN Draft, in an apparent reference to the Western biomedical system, encourages indigenous peoples’ access to other medical institutions, health services, and medical care. This provision, which is echoed in both the ILO Convention No. 16990 and the OAS Draft Declaration,91 is a clear support for medical pluralism. As already noted, medical pluralism can be broadly defined as more than one epistemic approach to sickness and health.92 Traditional Therapy under the OAS Draft Declaration The Draft Inter-American Declaration on the Rights of Indigenous Peoples93 has perhaps the most elaborate provision regarding traditional/indigenous therapeutic knowledge and practices. Although the Draft does not yet have the status of a treaty, its provisions reflect, to a large degree, the consensus on the rights of indigenous peoples in international law. Its legal status notwithstanding, implementation of aspects of the Draft has been fairly effective. The Inter-American Commission on Human Rights exploits the Draft’s provisions in the defence of the human rights of indigenous peoples in some countries. The provisions of the OAS Draft regarding indigenous health and wellbeing reflect a synthesis of similar provisions in the ILO Convention No. 169 and the UN Draft Declaration. Article 12 of the OAS Draft titled Health and Well-being confers on indigenous peoples the right to maintain, develop, and manage their own health services.94 With respect to traditional knowledge of plant-

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based therapy, the Draft makes direct provision, similar to the UN Draft, which not only mandates states to ‘[r]espect indigenous medicine, pharmacology, health practices and promotion including preventive and rehabilitative practices,’95 but also to facilitate their dissemination.96 Furthermore, article XII(3) provides that ‘[i]ndigenous peoples have the right to the protection of vital medicinal plants, animals and minerals.’ Again, along the pattern of the UN Draft, the OAS Draft Declaration supports indigenous peoples’ right to intellectual property protection regarding their scientific and technological knowledge relating to genetic resources, seeds, medicines, plants, and animals.97 Finally, despite indigenous autonomy over their health services, the Draft Declaration does not preclude their access to other state health institutions and services. Traditional Therapeutic Knowledge under the WHO The WHO was founded in 1948. Before its formation, three notable multilateral organizations were involved in matters of public health, especially regarding multilateral sanitary regimes. They were the Parisbased International Office of Public Health, the Health Organization of the League of Nations, and the Pan-American Sanitary Bureau. The WHO’s principal objective is the ‘attainment by all peoples of the highest possible level of health.’98 As an organ of the United Nations, the WHO is the most authoritative global body entrusted with the overall subject of global public health policy and governance. It is vested with broad enabling powers to implement its mandates. Some of these mandates include powers to act as coordinating authority on international health work; to propose conventions or treaties, agreements, regulations, and to make recommendations on the subject of international health;99 to initiate or promote and conduct health-related research; to determine and revise international disease taxonomy and issues of public health practice; to establish and promote international standards dealing with food, biological, pharmaceutical, and related materials. In addition to its extensive powers, the WHO adopts a broad, albeit ambiguous, conception of health. The WHO’s view of health incorporates two epistemic responses to ill health, namely, the Western scientific and the traditional or non-Western systems. Thus, the WHO’s constitution expansively defines health as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or

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infirmity.’100 This notion of health inherently accommodates the biomedical and psychosocial paradigms. These dual paradigms are respectively associated with Western and non-Western or traditional approaches to health and illness. Despite its pluralistic theory of health, the WHO has failed over the half century of its existence to bring about a binding regulatory or treaty regime that effectively empowers and regulates traditional therapeutic practices. This situation is hard to explain since the WHO constitution vests it with powers to make recommendations and initiate binding instruments, conventions, agreements in matters of international and public health policies. A majority of scholars in the areas of public health and international law agree that the WHO has woefully underutilized its legal potential.101 The result is that at this apex level of global public health policy there is no guiding or regulatory convention on traditional medicine. Instead, entrenching the status quo, Western biomedicine continues to be privileged while other health systems are regarded as alternatives. However, what often constitutes the alternative therapeutic system is in relation to the prevalent health tradition in a given society or country. For instance, where traditional therapy is dominant, as it is the case in most non-Western countries, then practically, Western biomedicine represents the alternative.102 It is not suggested, however, that only the WHO has all that it would take to reverse the epistemic and ideological conflict inherent in Western science/biomedicine and traditional knowledge systems. For instance, other specialized agencies, such as the FAO and the UNEP, also deal with health issues within the intersections of their mandates.103 Yet if the alternative therapeutic initiatives are to be accorded rightful status, as the WHO constitution grants, the WHO must be more proactive regarding the subject of traditional medicine. Even though the WHO has initiated no legally binding or regulatory empowerment for traditional therapeutic knowledge and practices, it has an elaborate program on traditional medicine. The WHO recognizes that for a number of reasons, traditional therapeutic knowledge and practices are indispensable to indigenous and local communities. For instance, traditional therapeutic experience is a culturally entrenched feature of indigenous or local peoples, who represent 80 per cent of the world’s peoples in dire need of health care.104 Thus, it is inevitable that traditional therapy, notwithstanding its inadequacies, is the foundation of a realistic primary health care, especially because of the number of peoples it serves throughout the world.

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In pursuit of its elusive mission of Health for All by the Year 2000, the WHO sought to incorporate various indigenous therapeutic practices and practitioners, such as traditional birth attendants (TBAs) into national health programs. The 1978 International Conference on Primary Health Care held in Alma-Ata, Kazakhstan, sanctioned the training of health workers, including traditional medical practitioners to a level of technical competence in order to enable them to respond to the needs of their communities in primary health care. Furthermore, traditional therapeutic knowledge and practices constitute aspects of a people’s sociocultural and religious identity, world view, and understanding of phenomena. Again, Western biomedicine is not only expensive but also inaccessible to many indigenous or local peoples. For example, the ratio of traditional medicine practitioners to the population in Tanzania, Uganda, and Zambia is in the range of 1:200 to 1:400, whereas the availability of allopathic practitioners is in the ratio of 1:20,000 or fewer. In sub-Saharan Africa, the ratio of traditional medicine practitioners to allopathic practitioners is in excess of 100:1.105 Concerns about the harmful effects of chemical drugs and disagreement over the assumptions and methodologies of allopathic medicine are cited as fuelling the patronage of traditional medicine in developed countries.106 Finally, Western biomedicine, or indeed any other health system, does not have a monopoly on solutions to human affliction. Hence, in the search for ways to mitigate the burden of illness, there should be no boundary; all options must remain open. WHO Policy on Traditional Medicine Since the 1970s, beginning with the 1972 World Health Assembly (the governing body of the WHO) Resolution WHA29.72, the WHO has pursued an official policy on traditional medicine. That Resolution acknowledged the potential of traditional medical practitioners in health care delivery. The 1977 World Health Assembly Resolution WHA30.49 enjoined WHO member countries to explore the use of traditional medicine in their health care systems. In 1978 the World Health Assembly, by Resolution WHA3.33, acknowledged the importance of medicinal plants in the health care systems of developing countries. The WHO policy aims at the integration of modern and traditional medicine into the national health care regimes in the member states for the purpose of achieving optimal coverage for health care needs.107 The policy seeks the evolution of initiatives aimed at assisting Third World countries to

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research, implement, and develop cooperative training programs and treatment strategies that incorporate traditional therapeutic experience.108 Pursuant to the WHO policy, a number of countries have set up traditional medicine research institutes, often with the technical and/ financial assistance of the WHO. Notable examples include Nigeria, Ghana, China, Thailand, Indonesia, the Democratic Peoples Republic of Korea, India, Madagascar, Mali, Laos Peoples’ Democratic Republic, Sri Lanka, and Vietnam.109 Halfdan Mahler, a former director general of WHO, observes that ‘[s]ince traditional medicine was incorporated in the World Health Organisation’s programmes in 1976, the gulf between traditional and modern systems appears to have narrowed to some extent. A genuine interest in many traditional practices now exists among practitioners of modern medicine; and growing numbers of practitioners of traditional, indigenous or alternative systems are beginning to accept and use some of the modern technology.’110 Twenty years after, it would appear that Mahler’s optimistic observation is a statement of desire rather than reality. The WHO’s policy on traditional medicine represents a desirable course of action that states are enjoined to encourage. Save for incorporation in a number of WHA Resolutions, and subsequent policy guidelines for testing the safety and efficacy of herbal medicine,111 the WHO policy on traditional medicine is not envisaged to have a binding effect. It is merely designed to persuade or influence the health care decisions or strategies of member states. Apart from the WHA Resolutions in the 1970s relating to traditional medicine, the WHO’s policy in this regard took a more proactive turn from 1991. In that year, the WHO issued, for worldwide use, the Guidelines for the Assessment of Herbal Medicine.112 According to Timothy R. Tomlinson, associate director emeritus of the Morris Arboretum of the University of Pennsylvania, and Nigeria’s Dr. Olayiwola Akerele, a former manager of WHO’s Traditional Medicine Program, ‘[T]he objective of these [WHO] guidelines is to define basic criteria for the evaluation of the quality, safety and efficacy of herbal medicines’ so as to ‘assist national regulatory authorities, scientific organizations to undertake an assessment of the documentation/submissions/dossiers in respect of such products.’113 Recently, the WHO issued General Guidelines for Methodologies on Research and Evaluation of Traditional Medicine.114 The Guidelines are based on ‘scientific’ criteria. This suggests that the WHO’s attempt to link health to culture pursuant to its broad notion of health, as also promoted by its joint declaration with UNESCO

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of 1996 as the Year of Health and Culture,115 is based on the reification of ‘Western scientific’ criteria as the basis for the validation of traditional medicine. Furthermore, the WHO’s emphasis on herbal medicine, without regard to the cultural context in which that component of traditional therapy is practised, depicts the fragmentation that the ‘scientific’ approach has wrought on indigenous knowledge systems. Thus, the WHO’s approach, based on narrow ‘scientific’ criteria, sustains the status quo that reifies scientific/biomedical hegemony. For instance, the WHO’s emphasis on active ingredients in its Guidelines not only advances Western scientific culture but also advocates mercantilism and extractivism with which Western science and its intellectual property allies have besieged indigenous knowledge systems. Indeed, the WHO Guidelines define herbal medicine as ‘[f]inished, labeled medicinal products that contain as active ingredients, aerial or underground parts of plants, or other plant material, or combinations thereof, whether in the crude state or as plant preparations …’116 The WHO’s elaborate policy on traditional medicine, as in some other areas, focuses on effecting desired policy changes at national levels in member states. According to the WHO, its policy strives to draw a balance between what it calls ‘uncritical enthusiasm and uninformed skepticism’117 about traditional medicine. In the first global WHO Traditional Medicine Strategy, the WHO articulates comprehensively in one document its policy on traditional medicine.118 According to the text, the WHO’s agenda for ‘traditional medicine/complementary alternative medicine’ (TM/CAM) aims at • facilitating integration of TM/CAM into national health care systems by helping member states to develop their own national policies on TM/CAM; • producing guidelines for TM/CAM by developing and improving international standards, technical guidelines and methodologies for research into TM/CAM therapies and products, and for use during manufacture of TM/CAM products; • stimulating strategic research into TM/CAM by providing support for clinical research projects on the safety and efficacy of TM/CAM, particularly with reference to diseases such as malaria and HIV/ AIDS; • advocating rational use of TM/CAM by promoting evidence-based use of TM/CAM; • managing information on TM/CAM by acting as clearing house to facilitate information exchange on TM/CAM.

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In pursuing these objectives, the WHO does not contemplate the use of an international legal resource such as a treaty or a form of international regulatory mechanism. Rather, it prefers to operate closely with national governments in the member states, non-governmental and international organizations, expert bodies, research institutes, and especially the WHO Collaborating Centres on Traditional Medicines,119 among others. By means of these collaborations, the WHO has achieved some degree of consciousness among states and regional bodies on the question of promotion and regulation of traditional medicinal practices. The 1991 guidelines have been instrumental in influencing national regulatory regimes on herbal medicines in many WHO member states. For example, between 1994 and 2000 the number of states that have enacted regulations concerning herbal medicine increased from fifty-two to sixty-four. In 2000, for instance, Nigeria, Australia, Canada, Madagascar, and the United States developed regulations on traditional medicine. Nigeria and Madagascar received assistance from the WHO.120 Without doubt, the strategic importance of traditional medicine explains, in part, the increase in its patronage globally, with or without the WHO’s promotion. Yet the latter’s policies have succeeded in setting in motion national regulatory regimes on traditional medicine, with emphasis on its scientific validation and integration with allopathic health care and other issues of safety and efficacy. The lack of an international legal mechanism for advancing its policy on traditional medicine contrasts with the WHO’s two other notable initiatives. Pursuant to its powers under article 21 of its constitution, the WHO adopted International Health Regulations (IHR) on infectious diseases.121 Originally called International Sanitary Regulations, the IHR is the first consolidated legally binding treaty adopted by the WHO pursuant its enabling powers.122 The regulation creates binding obligation on member states to notify the WHO in cases of outbreaks of certain infectious diseases in their territories.123 Despite reservations about its effectiveness,124 the IHR is today a binding regime among member states of the WHO. Similarly, pursuant to its treaty making powers under article 19 of the WHO constitution, the World Health Assembly, by Resolution WHA52.18, sanctioned the commencement of a multilateral negotiation of a WHO-sponsored Framework Convention on Tobacco Control (FCTC), which has been adopted without a vote on 21 May 2003, after two and half years of negotiation.125 According to Obijiofor Aginam, ‘[I]n its 53-year history, the FCTC process is the first time that WHO is exercising its treaty-making powers under Article 19 of its constitution.’126

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It is, however, instructive that the first WHA resolution on traditional medicine was passed in 1972. Since then, there have been several resolutions relating directly to traditional medicine. Those do not include workshops, conferences, seminars, guidelines, and several publications on traditional therapy sponsored chiefly or in part by the WHO. However, none of the WHA resolutions goes beyond merely cajoling member states to accord recognition to traditional medicine in their health systems and planning. This contrasts with the 1999 WHA resolution, which set in motion the now adopted FCTC, or the much earlier initiative, the IHR concerning the outbreak of infectious diseases, which creates binding obligations. One conclusion is inevitable. Notwithstanding the elaborate nature of its traditional medicine policy, the WHO has yet to explore the possibilities in international law for advancing that policy. As elsewhere, the WHO has failed to give maximum effect to its broader conception of health, which incorporates both biomedical and traditional paradigms. Most of all, the WHO’s recognition of traditional medicine is subject to ‘scientific’ validation or Western-style empiricism. As a result, the WHO finds itself in a situation where it tolerates the traditional hostility and ethnocentrism that characterize the relationship between Western biomedicine and traditional therapeutic practices.127 State Practice and Traditional Medicine Today, there are examples of state practice reflecting the integration or co-existence of traditional and Western medical sciences128 in line with the WHO vision. However, it is not clear whether or to what extent such examples were influenced exclusively by the WHO policy on traditional medicine. The tolerance or otherwise of traditional medicine in countries of Africa and Central and South America is influenced, for the most part, by their colonial heritage. For instance, because of the British colonial policy of minimum interference with native customs, Commonwealth countries are more liberal in recognizing indigenous medical practices than former French or Belgian colonies.129 Nonetheless, the WHO policy has penetrated many regions of the globe and has made appreciable impact in the organization’s over 190 member states. One point that demands reiteration is that, whether officially endorsed or not, traditional therapy must continue to be resilient not only as a distinguishing sociocultural characteristic of a people130 but also as a main source of their health care. There is no question that traditional

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therapeutic experience is part of the living reality of the majority of the world’s peoples. Therefore, my interest relates to deliberate policy or state practice officially recognizing traditional therapeutic practices. Such trends encourage the existence of an international legal regime for the protection of indigenous knowledge. Industrialized Countries Since the middle of the twentieth century, exclusive reliance on Western biomedicine has increasingly proved inadequate for health care demands and delivery. Attention has focused on the so-called alternatives, demand for which is rising across the industrialized world. This trend is a reflection of the interpenetration of cultures, peoples, and societies as well as their knowledge forms. According to the WHO, the percentage of the population in some developed countries that have used complementary or alternative medicine at least once is 38 per cent in Belgium, 42 per cent in the United States, 48 per cent in Australia, 70 per cent in Canada, and 78 per cent in France.131 In a similar vein, the growing non-affordability of Western biomedicine has triggered a resurgence in traditional therapy among indigenous and traditional communities. Charles Good notes that notwithstanding the technological brilliance of scientific medicine, the conduct of peoples seeking health care in Western societies underscores the fact that ‘mutual understanding and fruitful cooperating among [a] variety of contemporary alternative therapy systems is possibly greater than ever before.’132 Indeed, the inadequacy of modern biomedicine in many respects is partly the reason why the boundaries of what are considered ‘legitimate health practices’ continue to expand. For instance, homeopathy, osteopathy, anthroposocial and herbal healing, transcendental meditation, yoga, acupuncture, chiropractic, astrology, and palmistry, among others, command increasing but varying interests across Europe and North America.133 Hitherto, these were not officially recognized as legitimate therapeutic systems. The increased patronage of ‘non-official’ therapies is matched by corresponding legislation, regulations, and guidelines across the Western world where those unconventional therapeutic cultures have made significant incursions.134 For instance, by 2000, the United States had licensed over 12,000 acupuncturists, and a reported thirty-eight states have legally recognized acupuncture, with many others in the process of doing so. In Europe, the number of acupuncturists is estimated at

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15,000; nearly 80 per cent of allopathic doctors in Belgium and Germany also practise acupuncture.135 From its Chinese origin, acupuncture is now a global therapy, used in seventy-eight countries not only by acupuncturists but also by allopathic practitioners.136 Consistent with its scientific bias, the WHO has developed two guidelines on the regulation of the practice of acupuncture.137 Following the WHO Guidelines for Assessment of Herbal Medicine, over twelve European countries are said to have either established regulations of herbal medicines or revised existing ones.138 The gradual but quiet integration of unofficial therapeutic options into the official health system is indicative of state practices in this regard and the inevitability of interpenetration of knowledge systems. Developing Countries china and southeast asia In most developing countries, traditional therapeutic structures remain resilient, even though Western biomedicine is officially privileged. Such is the situation in the developing countries that were historically colonial outposts of a few European nations, with the notable exception of China, Thailand, Japan, and Korea. Because traditional medicine has now been acknowledged139 as the bedrock of primary or community health care,140 it is being incorporated into official health regimes in some developing countries. In this respect, notable strides have been made in Southeast Asia, more than in any other region of the world. Generally, most of the countries in Southeast Asia have effected substantial changes in their health laws for the purposes of tolerating and recognizing some formerly prohibited systems of health care.141 In China, despite an attempt to the contrary,142 traditional medicine was never completely dislodged from its central position in health care. Instead, over the years, it has continued to evolve toward integration with Western medicine. For instance, hospitals and schools of traditional medicine with harmonized curricula are now features of the Chinese medical system. Even most, if not ‘[a]ll the hospitals of Western medicine have set up departments of traditional medicine; the larger hospitals with better facilities have even instituted research laboratories to explore problems relating to the integration of traditional Chinese medicine with Western biomedicine.’143 The story is not very different in the Indo-Pakistani subcontinent and a host of other Asian countries that have given official recognition to their traditional medical systems.

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Today, Ayurveda, unani, and traditional Chinese medicine (TCM) enjoy formal status mainly in Southeast Asian countries. Worldwide, however, only China, the two Koreas, and Vietnam have achieved full integration between the allopathic and traditional therapeutic systems.144 In other colonized indigenous cultures, the traditional therapy systems struggle against Western biomedicine for full official recognition. africa, central, and south america In Africa, broadly speaking, the official health system is Western biomedicine. Nonetheless, its inadequacy, in terms of affordability and epistemic legitimacy in local cultural contexts, remains glaring. Hence, there is a strong reliance on traditional medicine for primary health care. A number of pilot public health projects that seek to integrate traditional therapy with Western biomedicine continue to be implemented in some African countries – for example, Ghana, Nigeria, South Africa, and Kenya. Ghana’s pilot project on the integration of traditional medicine tagged the Primary Health Training for Indigenous Healers (PRHETIH) targets the training of indigenous healers, specifically traditional birth attendants (TBAs) in the rural district of Techiman. It involves collaboration between a local Catholic hospital and its staff, officials of the state Ministry of Health, local leaders, and traditional healers. They jointly generated a curriculum and training program said to be suited to not only the needs of the healers but also to those of the community and recruited apprentices. The district hospital and its staff have remained a reference institution in the training of traditional healers. The hospital has since collaborated with the Ministry of Health and the WHO over an integrated development project. The project trains village health manpower, including traditional birth attendants, and extends nutrition clinics to neighbouring villages. The PRHETIH, an initiative of the 1970s, has endured. It represents a Ghanaian model for the integration of traditional therapeutic experience with modern health care in order to optimize the capacity of the state and local communities to meet the increasing pressures on primary health delivery. The model has continued to enjoy the support of the WHO.145 Ghana has a National Centre for Scientific Research into Plant Medicine at Mampong, which follows the WHO’s General Guidelines for Methodologies on Research and Evaluation of Traditional Medicine.146 For some time now, Ghana has been working on a draft bill on traditional medicine,147 which it enacted into law in 2000 as the Traditional

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Medicine Practice Act No. 575. The act establishes a Traditional Medicine Practice Council and vests it with power to carry out the registration and general regulation of traditional medicine practitioners. Nigeria’s pioneering effort in integrating allopathic and traditional therapy is in the area of treatment of psychiatric patients at the worldfamous Aro Mental Hospital in Abeokuta, Ogun State, Southwestern Nigeria.148 This highly successful model is associated with a former deputy director general of the WHO, Dr. T. Adeoye Lambo, a Nigerian. Aro’s success story represents a major turning point toward official recognition of traditional therapeutic practices in Nigeria, which began in 1966. Nigeria now has diverse and uncoordinated policies on and pieces of legislation relevant to traditional medicine. These initiatives culminated in the 2000 proposal for a law to establish the Traditional Medicine Council of Nigeria. In 2003 a draft bill to that effect was presented to that country’s National Assembly. Despite the delay in enacting the bill into law and consequently in setting up the Council, Nigeria is recognized as one of the few member states of the WHO with a proactive integration program. There is a National Institute for Pharmaceutical Research and Development that conducts research on plant medicine, among other areas of investigation. The institute uses the WHO Guideline for Methodologies on Research and Evaluation of Traditional Medicine.149 Recently, one of Nigeria’s universities launched a diploma program in herbal medicine,150 a step that is likely to trigger similar developments in other tertiary institutions in that country. South Africa has been proactive in according recognition to traditional healers as well as in the integration of indigenous therapeutic experience into its health care policy. As far back as 1974, that country evolved a licensing program, which recognized the practice of general traditional medicine among Bantu medicine men and herbalists. Such practices included naturopathy, homeopathy, osteopathy, and herbalism. South Africa’s policy received its legal backing via a self-descriptive act, titled Homeopaths, Naturopaths, Osteopaths and Herbalists Act, 1974. Section 8 of the Act provides for Bantu medicine men and herbalists. This Act paved the way for subsequent developments and policies on traditional medicine in South Africa that places the latter in a proactive position with regard to official recognition of traditional therapy in Africa. In 1991 the Medical Research Council of South Africa established the Research Group on Traditional Medicine (RGTM), which is based at the Faculty of Medicine, University of Cape Town. Apart from establishing

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a database of traditional medicinal knowledge, the RGTM is principally involved in conducting research on the role of traditional medicine in alleviating particular afflictions common to local communities such as malaria and tuberculosis.151 With one of the highest HIV/AIDS infection rates in the world, South Africa is open to exploring the potential of alternative therapeutic methods in tackling the scourge, even though none seems feasible at this stage. In September 2004 South Africa passed legislation that recognizes traditional healers as health care professionals who can claim fees from medical aid. Kenya has a number of quasi-governmental and non-governmental bodies that invest in research on the traditional medicinal practices among rural populations. They explore the feasibility of a meaningful engagement of traditional therapy with the official allopathic system. Notable in this regard is the African Medical and Research Foundation (AMREF). AMREF’s Health Education Department researches the traditional therapeutic culture prevalent in some Kenyan communities, including the pastoral Maasai indigenous peoples. Among AMREF’s other interests is the improvement of knowledge and attitudes of traditional birth attendants in select parts of Kenya, including, for example, parts of Machakos District. In Tanzania, Uganda, Zimbabwe, and other eastern and southern African countries, the involvement of traditional therapeutic practitioners in national health programs, including education and training, is gradually taking hold at different levels of government.152 Recently, Kenya has been engaged in policy initiatives on traditional medicine aimed at, among other things, catching up with Uganda and Tanzania, both of which have significantly developed strategies on traditional medicine. Kenya has a Medical Research Institute that conducts research on traditional medicines and therapies, among other things, by using the WHO’s General Guidelines for Methodologies on Research and Evaluation of Traditional Medicine. In 2003 the Department of Standards and Regulatory Services of Kenya’s Ministry of Health drew a draft bill outlining Kenya’s elaborate new policy on traditional health care and regulation of its practitioners. Despite a cautious or cold reception of the bill by that country’s medical profession, the bill appears to have commenced on a tortuous journey to becoming an act of Parliament. In most other African countries, various specific legislative and policy initiatives endorse a guided integration of aspects of traditional medicine, often under the bureaucratic supervision of official biomedicine.

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Such developments received impetus in the commitment of the African Union to recognize the period 2001–10 as a decade of traditional medicine. To date, a total of sixteen African countries have established legal frameworks for traditional medicine.153 Many others have national management or coordination bodies, including professional associations of traditional medicinal practitioners as well as bureaucracies that provide for training and budgetary allocation for the promotion of traditional medicine.154 Yet no country in Africa has fully integrated traditional therapy with allopathic medicine. Only Nigeria, Mali, and Equatorial Guinea are officially characterized as having an inclusive system. The WHO defines an inclusive system as one that has not yet fully integrated TM/CAM into all aspects of health care, even though there is an expectation that such integration is attainable.155 Therefore, strictly, integration of traditional medicine is not yet officially sanctioned in Africa. With regard to Central and South America, Jan Stepan surmises that a certain lack of legislative reaction to the issue of traditional medicine is discernible in most ‘transitional countries’ in this region. He notes that except for occasional provisions dealing with medicinal plants, traditional birth attendants, or quasi-scientific disciplines such as chiropractic, not much has been done toward the recognition of traditional medicine even in the vast rural areas of the continent.156 Nevertheless, as part of the result of the WHO’s traditional medicine policy, regulations regarding the registration of herbal medicines are now in effect in Bolivia, Chile, Colombia, Costa Rica, Ecuador, Honduras, Guatemala, Mexico, Peru, and Venezuela.157 The above review of WHO policy and state practice cannot be complete without reference to the role of traditional medicine professional associations. Since the 1980s, and perhaps earlier, traditional medicine practitioners have become important voices and active participants in national and international arenas where policies on traditional medicine are formulated. Over the past several decades, there has been a proliferation of both specialist and generalist traditional medicine professional associations. These groups play helpful roles in shaping policies on traditional medicine. They assist in promoting progressive understanding of traditional medicine; occasionally, they challenge the pejorative and exoticist representations of traditional medicine by the dominant culture and other interests. Most important, they promote professional training of personnel and responsible practice of traditional medicine. Indeed, as key stakeholders, traditional medicine prac-

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titioners represent a critical constituency whose contribution to the policy debate on traditional medicine is vital. Through their diverse professional associations, they promote a better understating of the role and practice of traditional healing in contemporary society. Perspective on the Worldwide Status of Traditional Medicine Pursuant to its traditional medicine policy, the WHO continues to provide authoritative, albeit Western-science-driven, regulatory, and status information on traditional medicine worldwide. In addition to those earlier mentioned, the relevant publications on traditional medicine in the WHO’s stable include the WHO Monographs on Selected Medicinal Plants. These monographs discuss categories of uses to which medicinal plants are put, while providing scientific information regarding safety, quality, and control.158 Perhaps the most relevant of these initiatives to this discussion are two WHO publications: The Regulatory Situation of Herbal Medicines: A Worldwide Review,159 and The Legal Status of Traditional and Complementary/Alternative Medicine.160 These and other related studies on traditional medicine, including notably the South Centre initiative titled Protection and Promotion of Traditional Medicine: Implication for Public Health in Developing Countries161 indicate, among other things, four broad categories of states and their practices with regard to traditional medicine. They include those states that (a) exclude traditional therapies,162 (b) do not officially recognize traditional therapeutic systems but do not exclude them either,163 (c) are tolerant of traditional therapeutic systems and are working toward their full integration into all aspects of their health care systems,164 (d) have achieved full integration of traditional therapeutic systems into all aspects of their health care.165 The WHO and Traditional Medicine: Of Timidity and Scientific Hegemony The WHO’s policy on traditional medicine, unlike the earlier and more recent WHO initiatives regarding infectious diseases and the recently concluded FCTC, does not tap deeply into that organization’s power under international law. This is so despite the WHO’s ample latitude within its constitution to legally empower its public health policies, including its traditional medicine program. As already noted, the WHO endorses a conception of health that includes the scientific/biomedical and traditional/psychosocial paradigms. Nonetheless, its traditional

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medicine policy, through its emphasis on ‘scientific’ standards, reifies and privileges Western medical science as the yardstick for validating traditional medicine. Again, the WHO’s emphasis on herbal medicine undermines the social context of traditional medicine. Herbal medicine is only an aspect (albeit a pivotal one) of traditional therapeutic knowledge and practices. As will be demonstrated subsequently, herbal medicine is not an isolated experience in indigenous therapeutic culture. Its setbacks notwithstanding, the WHO’s traditional medicine policy has influenced state policies and practices aimed at integrating of traditional therapeutic systems into national heath care. Yet it may not be totally correct to claim that the trend toward integration is due entirely to the WHO policy. The integration trends are not uniform because of the regional differences we have observed, but there is no denying that entrenched state practices point to the integration of traditional medicine with Western biomedicine. The WHO’s policy on traditional medicine is very modest in comparison with the more proactive approach to traditional therapeutic knowledge and practices in the international instruments reviewed in the earlier pages of this chapter. Even though the WHO policy has generated and continues to generate various forms of state practice, the organization’s lack of courage in taking the policy beyond its current status as a guideline of mere persuasive consequence diminishes its commitment to traditional medicine. However, it can be argued that the strides attained by extant policy in the WHO member states might ultimately pave the way for an international legal initiative on traditional medicine. Overall, even though no such treaty scheme is under way, the WHO presents a global policy framework that sanctions a pluralistic epistemic approach to health. Nonetheless, in the elaboration of that policy, the WHO privileges biomedical hegemony over traditional medicine. The WHO needs to fully appreciate the cultural and psychosocial exchange at the heart of traditional medicine. Such an orientation will temper its insistence on the validation of traditional medicine on the basis of a narrow conception of science. In order to have a fair and acceptable policy or regulatory regime on traditional medicine, the WHO requires this kind of re-orientation. Summary Some pertinent points regarding traditional therapeutic knowledge and practices can now be made. These practices are recognized as an aspect

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of indigenous knowledge in the relevant instruments. They are perceived as independent medical tradition, involving a complete medical system. A medical system represents ‘a patterned, interrelated body of values and deliberate practices governed by a single paradigm of meaning, identification, prevention and treatment of disease.’166 As a medical system, traditional therapeutic practices are associated with the sociocultural conditions and developmental aspirations of indigenous peoples in the relevant conventions. Thus, traditional therapeutic knowledge and practices can be distinguished from the orthodox Western biomedical approach to health care. On intellectual property rights, there is a consensus running through the relevant instruments over the entitlement of traditional medicinal knowledge to intellectual property protection. The ILO Convention No. 169 and the UN and Inter-American Drafts all endorse the idea of intellectual property rights for indigenous knowledge in general and traditional therapeutic practices in particular. However, they lack specificity as to how these rights could be realized. The apex international body on health, the WHO does not have a mandatory policy for recognition of traditional medicine. Its policy in this regard is rooted in the resolutions of its governing body, the World Health Assembly, as well as in the elaborate but non-binding guidelines for worldwide application and other programs sponsored in virtually all the member states. Consequently, there are uneven state practices regarding the recognition and integration of traditional therapy in national health care systems. Perhaps, rather than being the result of WHO policy, the apparent popularity of traditional medicine in the developing countries drives the trend in states toward the promotion of traditional therapeutic practices. There are other common inclinations discernible from the review of the instruments dealing with traditional therapy. These relate to the requirement that indigenous peoples’ patronage of traditional medicine and the right of autonomy over their health institutions should not preclude them from the benefits of official biomedicine. Thus, indigenous patrons of traditional therapy are encouraged to take advantage of official biomedicine as well. There is no such positive requirement (and indeed need not be) for those steeped in orthodox biomedicine. Hence, the incursion of unorthodox therapeutic cultures and their patronage in the Western industrialized countries reflects the resilience of traditional therapy, the inadequacy of Western biomedicine, and humanity’s desperation in matters of health and illness more than it

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attests to a deliberate policy. A situation such as this depicts a lack of intellectual reciprocity in the relationship between orthodox biomedicine and traditional medicine as an aspect of their paradigmatic conflict.167 Focusing on the sociocultural context for the practice of traditional medicine, the next chapter examines, in part, how that paradigmatic dichotomy dominates the relationship between the latter and allopathic medicine.

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4 The Sociocultural Context of Traditional Knowledge of Plant-Based Therapy

The preceding chapter examined the juridical basis for the protection of traditional medicine. In order to fully situate the concept of TKPT beyond the juridical paradigm, this chapter explores the sociocultural context of the use of plants in traditional therapy. Unlike in the biomedical context, indigenous use of plants in therapy is not limited to the knowledge of plant therapeutic compounds or active agents. Traditional therapeutic knowledge and practices, especially those relating to the use of plants, constitute a fusion of the therapeutic and pharmaceutical aspects of indigenous medical traditions. Such knowledge forms may not be separated from the sociocultural, religious, and belief systems of indigenous and local communities. As will become clearer in chapter 5, applying conventional intellectual property to traditional medicine will be at the price of compromising its deep sociocultural essence and epistemic significance to non-Western peoples and traditions. Indigenous peoples’ knowledge and world view are based on holistic conceptions of phenomena in an entangled web of relationships. Isolating an aspect of that knowledge here, as the concept of TKPT suggests, is not to subscribe to the fragmentation of the holistic spectrum of indigenous knowledge. In this context, that approach serves an analytical objective only. As will become evident in this chapter, the concept of TKPT reinforces the integrated nature of indigenous knowledge forms and practices. Plants are used in most cases of indigenous therapeutic interventions along with other substances including animals and minerals. However, the emphasis here is on the use of plants in therapy, even though other aspects of indigenous therapeutic applications are acknowledged. Indeed, the use of plants in traditional therapy involves the full complement of indigenous religious beliefs, socialcultural

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relationships, and cosmology. Therefore, the focus on plants serves a purpose akin to a case study. It demonstrates the holistic paradigm of indigenous knowledge and understanding of phenomena. Traditional Therapy and Western Biomedicine: The Paradigmatic Divergence Between the Biomedical and the Psychosocial Peoples’ health systems or therapeutic models derive from their philosophical and cultural affiliation.1 Often their world view and understanding of phenomena are linked to their approach to health and well-being, their theories of disease and illness, pain and suffering, sickness and afflictions.2 The epistemological disparity between the Western and indigenous or non-Western societies in relation to their health care cultures is broadly, albeit less accurately, expressed as biomedical and psychosocial, respectively.3 These broad categories refer to the core conceptual features of traditional therapeutic practices and Western biomedicine. They are not absolute. Between traditional therapy and Western medical science, there is hardly any homogenous therapeutic model stricto sensu. Within these broad categories, there are distinct health subcultures with variant contextual uniqueness. Referring to (Western) medical science, Helman writes that: ‘There is really no such thing as uniform Western or scientific medicine … [H]uge differences in perspective exist between different branches of medicine – between, say, the perspective of surgeons, psychiatrists, epidemiologists, general practitioners and public health specialists.’4 Within the Western scientific culture, disease or illness is a biological process or condition requiring a directly targeted course of treatment. There is a limited conceptual space for the consideration of psychosomatic elements in Western biomedicine. Ironically, 70 to 80 per cent of patients do not suffer from organic disorder, which is the preoccupation of allopathic medicine.5 On the contrary, traditional therapeutic systems emphasize the psychosomatic dimension to illness. Health and sickness are conceived in their psychological and psychosocial dimensions.6 A person’s well-being depends on his/her harmonious relationship with the community and other supernatural forces, as well as the maintenance of necessary equilibrium between the relationships. The organismic and psychosocial paradigms of Western and traditional therapies result from their differing conceptions of the human

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body. Since the Middle Ages, humanity has been conceptualized as separate aspects of body, mind, and spirit.7 Historically, Western thought emphasizes humankind’s individual parts as opposed to an integrated whole.8 The Cartesian scientific materialism in which biomedicine is essentially rooted maintains a distinct schism between the mind and the body. The mind-body division is also the basic principle of the Western Judeo-Christian tradition. Both under scientific materialism and Judaeo-Christian thought, the mind is severed from the body. On the contrary, in traditional therapeutic systems a human is an integrated being comprising the indivisible unity of mind, body, and soul. The unity of mind and body is linked to the desired unity between the individual and the larger community, as the primary aim of traditional therapy. Treatment of sickness is approached from a holistic perspective in which physical debilitation is linked to the psychosomatic state of the sick. Thus, ‘[m]ost folk healing systems assume a complex interconnectedness of body, mind and spirit. The balance and harmony that define health incorporate all of these aspects of persons, and disturbances in any of the aspects can produce sickness and symptoms in any of the others.’9 In the search for a cure, there is no organismic separation between the individual and her component parts. Therapeutic intervention is a total package comprising complex diagnostic and curative rituals rooted in cultural, religious and psychosocial appeals. Another area of paradigmatic divergence between Western biomedicine and traditional therapy is in the nature of the therapeutic environment. The allopathic system maintains a formal relationship between the physician and the patient. Its narrow scientific bias encourages this formality, in which objectivity is a virtue. In essence, the physician– patient relationship is a strictly formal and therapeutic intervention, one that is highly objective. The formalism of the physician-patient relationship in the biomedical context is somewhat antithetical to the psychosocial paradigm of traditional therapy.10 Under the latter, the therapeutic environment is informal. The patient knows most, if not all, members of the therapeutic community who partner in the restorative process by ensuring that prescribed rituals and rites are fulfilled according to tradition and/or religion. Objectivity or universalism have little or no space in this context. Therapy is often a targeted spiritual and sociocultural process. The foregoing overview reflects the basic paradigmatic divergence between Western biomedicine and traditional therapy. It is by no means

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exhaustive. To a very large degree, the paradigmatic divergence results from the theories of illness and sickness that constitute the foundation of Western and indigenous or non-Western therapeutic establishments. An understanding of the influence of the theories on the therapeutic cultures will further amplify the tensions and extent of the paradigmatic divide, especially in relation to the use of plants in therapy. Theories of Illness Generally, there are almost as many theories of illness11 as there are specific illnesses and cultures that seek explanation for human afflictions and diseases. A comprehensive review of culture-specific accounts of illness does not fit within the scope of this book. Nonetheless, on a paradigmatic basis, Western biomedicine and traditional therapy subscribe to two broad theories of illness that have influenced their respective therapeutic conventions. It is important to indicate that no culture subscribes exclusively to one theory of illness. In fact, most cultures subscribe to multiple theories of illness with varying degrees of emphasis. The two broad categories are the ‘natural’ and ‘supernatural’ theories of illness. Within each of these two paradigms there are metatheories. the natural theories of illness George Murdock defines theories of natural causation as ‘any theory, scientific or popular, which accounts for the impairment of health as a physiological consequence of some experience of the victim.’12 An important condition is that the theory must conform to ‘a manner that would appear reasonable to modern medical science.’13 Clearly, natural causation is the theoretical domain of biomedicine. Murdock identifies five distinct theoretical categories within the natural causation account. Among them are the infection theory, which encompasses Pasteur and Koch’s germ theory, whose central thesis is that the cause of illness is the exposure of the victim’s body to harmful microorganisms or germs. This is purely an organismic account. The second category is stress, defined as ‘exposure of the victim to either physical or psychic strain.’14 A third is organic deterioration, which results in decline in a person’s physical capacities, usually associated with old age. Accident is the fourth category. It is explained as physical injury resulting from the victim’s unintended encounter, but it cannot be traced to the supernatural. The fifth category refers to injury or suffering resulting directly from overt human aggression such as violent quarrels, brawls, war,

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assault, and events of like nature. To varying degrees, different cultures subscribe to some of these theories. Modern science, including biomedicine as an applied science, does not recognize any other accounts of illness that are not located within the rubric of natural causation. Therefore, the following classification of supernatural causation is an anthropological enterprise. the supernatural theories of causation Supernatural theories seek to explain the causes of illness on bases other than those sanctioned by Western biomedicine. From a study of 139 primitive, historical, and contemporary societies, Murdock finds that the supernatural causes of illness far outweigh natural causes in the belief systems of the world’s peoples. He classifies the world into six regions to reflect an equitable geographical distribution of primitive, historical, and contemporary societies across the globe. The regions are North America, South America, Insular Pacific (including the Australian continent and the groups of islands from Indonesia to Polynesia), Sub-Saharan Africa, East Asia, and what he calls Circum-Mediterranean (including Europe, North Africa, and the Near East). His study is not only detailed, it also adopts a coherent classification of the supernatural categories. Thus, it merits some attention. Murdock’s categories include the ancient and contemporary civilizations of Europe and North America that are the present-day champions of the scientific tradition and modern biomedicine. Within the umbrella of supernatural causation, Murdock distinguishes eight additional theories of illness, which can be conveniently pigeonholed into three broader heads of mystical, animistic, and magical causations. Mystical causation theory traces illness from a victim’s experience of a supposed impersonal causal relationship, which is not occasioned by an identified human or supernatural entity.15 Examples of mystical causation include fateful occurrences associated with forces of astrology, predestination, and ill luck. Illness can also be blamed on the contagion mystique, which refers to contact with defiling or polluting objects or persons. This form parallels the natural causation theory of infection. Among different cultures, contacts with corpses, swine, menstrual blood, menstruating women, or social outcasts are considered contagion. Ominous sensations in the form of dreams, visions, or some mystical experience also fall under mystical causation. Finally, mystical retribution is believed to manifest in illness where there is a violation of taboo or moral injunction. Noted forms of taboos and moral injunctions

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include those relating to drinking etiquettes, rituals, sex (including incest, bestiality, or intergenerational intercourse), and blasphemy. The second broad category of supernatural causation is animistic causation. It ascribes illness to a victim’s personalized supernatural being such as ghost, soul, spirit, or god.16 For instance, among the Igbos of Nigeria, each person is believed to have a personal god called chi, which is credited or blamed for individual circumstance.17 The concept of chi is likened to personal fortune or ill fortune, luck or ill luck, or fate in a loose sense. Animistic causation explains such situations as soul loss in which the victim’s soul is believed to voluntarily depart from his/her body, as opposed to a situation in which it is lured out by an act of sorcery.18 Another example is spirit aggression, whereby the victim’s ailment is traced to the punitive conduct of an offensive spirit entity such as ancestral spirits, demonic spirits, or other entities or godlike beings. Again, the Igbos may describe this occurrence as an attack by one’s ancestral spirit or mba’gbara. Magical causation theory is the third form of supernatural causation. It is perhaps the most controversial because of its linkage to witchcraft, which has been a subject of cross-cultural epistemic debate. Magical causation ascribes illness to the clandestine action of malevolent persons who afflict their victims through deployment of magic. Sorcery and witchcraft are the two aspects of magical causation. Individual deployment of magical technique, either alone or with the aid of magicians, can accomplish the objective of causing another to be ill. Sorcery is deemed to be perpetrated by several means, including curses, casting of spells, prayers, intrusion of debilitating objects into the victim’s body, or performing rituals or exuvial rites over the victim’s personal garments or biological components such as hair or nail cuttings19 as well as excrement or semen. Illness is associated with the act of a member of a privileged cult who is believed to have an enormous capacity and propensity to do evil. The ‘Evil Eye’ – fear of envy in the eye of the beholder20 – is the most prominent technique used by witches to perpetrate evil. It is recognized in most societies that have the tradition of witchcraft.21 Yet, witchcraft is not always associated with evil.22 In a number of cultures, it is identified with the capacities for good and/or evil, and it is often deployed in healing practices.23 Nonetheless, with regard to supernatural theories of illness, the emphasis is on the diabolic aspect of witchery. It is virtually impossible to account for every theory of illness prevailing in all cultures. However, the above provides a fair overview. It is

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important to reiterate that most cultures have theories of sickness that derive from both natural and supernatural paradigms. No culture subscribes exclusively to only one theory of illness. But in terms of the paradigmatic divide between Western biomedicine and indigenous therapeutic philosophy, the limitations of the former are palpable. Indeed, neither medical science nor conventional intellectual property regimes subscribe to the validity of supernatural phenomena or knowledge deriving there from. Traditionally, ‘science’ and the patent regime strive toward clinical and experimental evidence and in isolating active compounds in the search for the way in which they affect biological organs.24 The human body is the only proper object of medical knowledge, while faith in experimental biology represents the solution to the challenges of health and illness.25 On the other hand, traditional therapeutic systems are not necessarily limited to supernatural accounts of illness.26 Theoretically, the systems are open to understanding and exploring other accounts and approaches. Not reckoning with supernatural theories has the consequence of self-marginalization for biomedicine. For instance, Murdock finds that except for overt human aggression, and to a limited extent stress, the natural causes of illness have received remarkably little attention across cultures. What predominate are the supernatural accounts. Of the 139 cultures Murdock studied, only the Japanese, for instance, give substantial consideration to biomedicine’s most valued theory of infection, which associates a person’s exposure to harmful organisms as the root cause of illness.27 Another consequence of undermining the supernatural account is that it limits biomedicine to organismic and clinical intervention and explanation. In a sense, biomedicine serves the less than adequate purpose of treating mainly clinical symptoms of disease, especially acute conditions. This approach does not give indigenous and non-Western peoples the assurance of a cure, which is not merely the absence of disease. Hence, even those who have been clinically rid of disease still fall back on traditional healers, who are trusted to treat the illness. Such treatment includes, perhaps most important, claims to knowing the culturally and spiritually valid reason why the ‘victim’ was afflicted in the first instance.28 Supernatural theories of illness constitute a triad of the mystical, the animistic, and the magical. All of those make sense within a given sociocultural, religious, and belief system in which sickness and healing coalesce as a way of life in contradistinction to being an organismic or clinical inquiry. Thus, healing, as a way of life, is a cultural and

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performative art and science that is administered within a people’s cosmological milieu. Before examining the performance of healing in the indigenous or traditional context, I first evaluate the significance of a pivotal element in traditional therapy, namely, plant biodiversity, which was introduced in chapter 2. The Central Role of Plants in Traditional Therapy From ancient times to the present, there is no culture in which the use of plants as medicine is not a norm.29 Documented accounts demonstrate the role of ancient Graeco-Roman,30 Hebrew,31 Egyptian,32 Chinese,33 Arabian, and Aryan34 civilizations, among others, in the evolution of modern medical and associated sciences beginning with herbology.35 The use of plants is central not only to traditional therapy but also to Western biomedicine. For instance, apart from owing their origins to traditional herbology, modern pharmacology and phytomedicine – two ancillary disciplines to pharmaceutical and medical sciences – derive their relevance from the use of plants.36 However, plant use in traditional therapy is far more crucial to the traditional institution of healing for a number of reasons. First, unlike in modern medical applications, traditional uses of plants do not subscribe to the idea of artificial or synthetic alternatives. In the traditional therapeutic arena, there is no substitute for the natural use of plants. Second, in most cultures, plants, animals, and humans have an equal status in a cosmological philosophy in which phenomena are united in a complex web of living relationships.37 Therefore, the knowledge of plant therapeutic properties, including their dispensation, is not an isolated endeavour. Rather, it is a religio-cultural and spiritual exercise whose full significance is better appreciated within the context of an indigenous holistic world view. Third, in formal terms, traditional healers use plants in their healing art. However, a wide range of ordinary members of the traditional community are involved in a functional and nonprofessional knowledge of plant uses, particularly in the treatment of common ailments.38 For example, among Ayurvedic practitioners, patients’ prescriptions are prepared in the clinic. Nonetheless, as a matter of practice, patients are encouraged to prepare simple decoctions from home, using locally available herbal resources.39 In many other cases, local folk use herbal preparations for the treatment of common symptoms without having to consult healers. This is widespread in many traditional medicinal prac-

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tices, especially in Africa. For instance, in 1998 surveys of the WHO Roll Back Malaria Program in Ghana, Mali, Nigeria, and Zambia, over 60 per cent of children with high fever (one of the symptoms of malaria) were treated at home with herbal medicines.40 In essence, most members of local and indigenous communities generally administer plant drugs, albeit for informal and elementary purposes. Eighty-five percent of traditional medicine involves the use of plants.41 The remaining 15 per cent relates to the use of animals, minerals, and other medicinal elements. About 4 billion of the world’s peoples rely on plants for their drugs. The religious-cum-therapeutic significance of plants is a phenomenon common to almost all the world’s known cultures, religions, and different belief systems. There is no human culture or world view that does not subscribe to the medicinal values of plants. The Earth is known to have been home to plant kingdoms for longer than it has borne human life.42 In fact, it could be argued that plants predated humanity, perhaps so that the latter would depend on plants for food and medicine for the sustenance of human life. Plant Therapy: Some Biblical Insight The place of plants in Judeao-Christian tradition is glimpsed from biblical references. Richard Lucas observes that the term herb(s) is mentioned thirty-seven times in the Bible. This is in addition to the Bible’s repeated mention of specific botanicals by their names. A few examples include the balm of Gilead, the fig tree, the myrtle tree, frankincense, myrrh, and hyssop. Further, even heaven’s famous manna is associated with the tamarisk tree or the saccharine juice of different plants and trees. Interestingly, all these plants have been identified with medicinal values, even as they bear some religious or symbolic relevance among Jews, Greeks, and Arabs.43 For example, the balm of Gilead is a tree native to Arabia. It is mentioned in the Bible as a medicinal plant.44 Its buds are now used as a remedy for treatment of lung, stomach, and kidney disorders. In biblical times, the fig tree was used in the treatment of boils,45 a use for which it is still applied in many cultures today. In addition, the fig has the symbolism of peace and plenty among the Jews. Myrtle is mentioned as a symbol of God’s promise. Apart from this religious significance, it is a remedy for rheumatism, ulcers, and dysentery. The Greeks associate its evergreen feature with immortality.46 Spikenard, with which ointment Jesus was anointed, is both an aromatic and medicinal plant.47

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Frankincense and myrrh are known preservatives. In addition, Jews and some inhabitants of the Arab world, including Egypt, burn them in religious rites.48 This is parallel to the manner in which peyote is used for hallucinogenic effect by some Native Americans in the performance of religious rites. Hyssop, which was offered to Jesus on the cross, is a religious symbol of purification from sin. Among the Jews, it is symbolically related to Passover.49 Early herbalists used it on fresh wounds to ward off infections and for healing. Subsequently, the mould that produces penicillin has been found to grow on hyssop leaves.50 Plants under Unani Medical Tradition Unani or the Graeco-Arab system of medicine was developed by the ancient Arab civilization. It is now commonly practised in the IndoPakistani subcontinent and other parts of the Muslim world.51 Unani prescriptions are substantially herbal, even though its pharmacopoeia consists of natural drugs from animals, minerals, and marine flora and fauna.52 According to Hakim Mohammed Said, ‘The prescriptions are begun with Howash Shafi (God is the Healer), generally in the Persian language.’53 Since Unani attained recognition by Indian and Pakistani governments, there has been a vast scope of collaborative research on medicinal plants whose therapeutic values have long been known to Unani practitioners, the tabibs. What is instructive here is not only the central role of plants in the Unani system but also the religious undertone associated with Unani plant medicinal prescriptions. Plant Medicine in Ayurveda The Ayurvedic54 system ranks as one of the oldest medical systems known to civilization. Its practice is prominent in the South Asian countries of Bangladesh, India, Pakistan, Nepal, and Sri Lanka. Ayurveda is a comprehensive medical system to which modern medical science owes a great deal. There are about seventy books of Ayurvedic pharmacopoeia containing about eight thousand recipes. Not all have been published. Today, the practice of Ayurvedic medicine includes such specialties identified in modern medicine as internal medicine, surgery, pediatrics, toxicology, eugenics, and geriatrics, among others. Ayurveda is deeply steeped in the ancient Hindu religion55 and astrology. It is believed to emanate from revelation and intuition.56 According to Ikechi Mgbeoji, ‘[T]he ancient Rig Veda57 postulated that God sleeps in the

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mineral and awakens in the vegetable, walks in the animal and drinks in man.’58 This observation not only underscores the holistic conception of phenomena in the vedic tradition, but also the religious significance of plants (vegetables). The intricate web of relationship and communication between humanity and plants is associated with the supernatural world of cosmic beings that the Hindus call devas. This phenomenon and mysticism associated with plants have been the subject of scientific inquiries leading to the affirmation of the consciousness of plants, for instance, in expressing ‘the most violent reaction against abuse and the most ardent gratitude for favors.’59 Ayurveda emphasizes the use of plants, in addition to other materials, in the treatment of pathological conditions. Principal therapeutic measures include medicine, especially herbs, diet, and activity, all of which are targeted at antagonizing the disease. By exposure to astrology, the Ayurvedic physician is believed to acquire the knowledge to select the appropriate herbal medicine. The appropriate herb must be one that is ruled by a planet opposed to that responsible for the sickness.60 In Ayurvedic tradition, we see not only the centrality of plants in therapy but also the connection between traditional therapy, religion, and cosmological order. Plants in Traditional Chinese Medicine Traditional Chinese medicine, an enduring treasure of ancient Chinese civilization, is one of that country’s greatest legacies. It is noted for its confounding dynamism and efficacy, attested to in part by contemporary global patronage. The use of plants and the role of religion or a belief system are fundamental to Chinese medical heritage, which is appropriately described as the ‘crystallization of Chinese people’s wisdom and experience.’61 The earliest recorded history locates the evolution of Chinese medicine to 1800 b.c., at the beginning of the Shang or Yin dynasty. In that account, Chinese medicine is traced to oracle-borne inscriptions on scapulae and tortoiseshell discovered among artifacts from that dynasty. Those inscriptions identified, described, and classified various illnesses and diseases and prescribed primary methods for their treatment.62 The Book of Rites, a manual of religio-therapeutic ceremonies written in the Zhou dynasty (1100–800 b.c.), reinforced the link between religion and therapy. It identified four departments of medical specialty: nutrition, internal medicine, surgery, and veterinary medicine.63

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The most prominent book on Chinese medicine and also the oldest and most comprehensive, the Yellow Emperor’s Internal Classic, highlights the clinical and theoretical foundations of Chinese medicine.64 The Chinese medico-philosophical outlook is based on the theories of yin and yang, viscera, and bowels.65 Illness is generally perceived as the distortion of natural equilibrium in diet, in social relations, metabolism, the environment, natural choices, metaphysical intervention, and so on. The restoration and sustenance of equilibrium in all facets of human life is the aim of therapeutic intervention; therefore, health, in simple terms, is striving toward maintenance of equilibrium in the social, physiological, and natural order of things.66 Herbal medicine is perhaps the most prominent form of traditional Chinese medicine. Nonetheless, in addition to clinical experiences, the Chinese have a rich variety of other therapeutic endowments, including some on the medical borderline such as acupuncture, moxibustion67 or massage therapy, chiropractic, osteopathy, and what is termed various versions of faith healing. These are classified as theories within the twilight zone between natural and supernatural causation. According to George P. Murdock, they generate incompletely formulated theories of causation and are not accepted by medical science yet.68 The first botanical garden in history is linked to Chinese herbology, and it dates back to Shen Nung, the red emperor who lived till 2697 B.C. Shen Nung is said to have tested the herbs from his garden for their medicinal properties. From then, and perhaps earlier, Chinese experience on the use of herbs has become probably the most comprehensive known to civilization. Records from the second to the twelfth centuries show progressive discoveries in herbal applications. By the seventeenth century, China had officially documented 1,892 herbal drugs and 11,000 prescriptions. Official recognition of Chinese medicine has led to more emphasis and research on the use of herbs over other therapeutic regimes. By the 1980s traditional medicine in China had to its credit a rich pharmacopoeia, including more than 10,000 medical books, 5,000 varieties of herbal remedies, and an enviable experience in clinical therapy.69 Today, herbal medicine is a burgeoning global industry in which China is a major stakeholder. Without question, the use of plants is predominant in Chinese traditional therapy over other curative regimes. Plant Medicine in Native American Therapeutic Traditions In the therapeutic traditions prevalent among the various North American indigenous peoples, the use of plants is pre-eminent.70 Native

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Americans have relied virtually exclusively on the plant kingdom for their medicinal needs.71 The medicinal use of plants among Aboriginal peoples of North America is essentially a spiritual and cultural process. In a world view based on complex relationships among all ecological forces and phenomena, plants are regarded as sacred and are perceived as truly living entities with which humans share a sanctified communion and ecological space. Native or indigenous immemorial beliefs about plants are corroborated from different paradigms of inquiries conducted by scientists, even poets, philosophers, psychics, and people of different backgrounds from the time of Aristotle. It is not surprising that from the array of knowledge generated from the inquiries into the ‘secret life of plants,’ plants have been aptly described as the ‘bridesmaid of a marriage of physics and metaphysics.’72 Peter Tompkins and Christopher Bird passionately document the evolution of landmark scientific inquiries into the life of plants. All of them confirm the thesis known to Native Americans from time immemorial that plants have the fullest, if not more complex, characteristics akin to human life and living experiences. Among Native Americans, the healing qualities of plants elevate them to a divine status in a manner akin to the philosophy of many nonWestern cultures. For example, the Native American scholars Mary Battiste and James Henderson observe that even though Eurocentric researchers know the name of an herbal cure and understand its application, without the ceremony and ritual songs, chants, prayers, and relationships, it will fail to produce the same effect.73 Native American therapeutic practices are complex cultural, religious, and spiritual processes that, to a large extent, spin around the use of plants. The richness of modern American pharmacopoeia is linked to the wealth of knowledge derived from Native American traditional pharmacology. Virgil Vogel identifies about 170 drugs listed in the pharmacopoeia of the United States.74 Historically, those drugs have been medically applied in what is called rational therapy75 by Native Americans north of Mexico. Rational therapy is an ethnocentric reference to scientific or pharmacological significance of plants/drugs used by ‘primitive’ peoples, as opposed to their other therapeutic practices, which are supposedly not explicable to medical science. Vogel’s study finds that inhabitants of the West Indies, Mexico, and Central and South America use about fifty more of those drugs.76 The range of plant-derived drugs and their applications contained in Vogel’s list is not exhaustive of the richness of medicinal use of plants by Native Americans. Nonetheless, it is quite revealing. They cover drugs in the following pharmacological

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categories: anesthetics, narcotics, stimulants, astringents, cathartics, childbirth medicines, antibiotics, poisons, febrifuges, vermifuges, emetics, and contraceptives. Indeed, apart from the contribution of Native Americans to the pharmacopoeia of the United States and elsewhere, modern pharmacopoeias reflect numerous contributions from other indigenous cultures. Plant Medicine in Humoral Therapy in Latin America Humoral therapy is defined as the ‘“hot-cold” classification of living and inanimate matter.’77 Said to originally derive from Greek concepts, humoral medicine is now the received wisdom of indigenous societies in Mesoamerica and South America, attesting to the historical interpenetration of cultures and knowledge systems. Humoral therapy is today the theoretical foundation of traditional therapeutic practices prevalent among Latin American Indians. In this theoretical outlook, the need for balance in physical, physiological, and psychosocial aspects of the individual is the essence of good health. Balance refers to the state of dynamic equilibrium;78 as such, it is relative and specific. Imbalance is associated with ill health and disease. When a person is out of balance, the body equilibrium is distorted, thus precipitating hot or cold excesses devoid of the requisite balance in both phenomena. Usually, foods are classified according to hot-cold praxis. Consumption of food types without due cognizance to the ‘cold-hot’ compositions results in imbalance. Another cause of imbalance is physical activity and exposure to the elements.79 The aim of therapy is the restoration of balance. Food and medical plants are the principal therapeutic remedies in the humoral theory. Treatment consists of food and herbs that are capable of neutralizing the imbalance identified with the patient. The method is analogous to the use of medicine, diet, and activity to antagonize diseases under the Ayurvedic system.80 Because of the fine line between food and plants, it can be argued that perhaps under humoral therapy, more than any system of traditional medicine, the use of plants is paramount. Consequently, traditional herbalists appear to be the most visible of traditional therapeutic practitioners in systems that use humoral therapy. Nonetheless, belief systems rooted in spirituality and supernatural phenomena warrant the prevalence of other traditional practitioners, especially diviners. For instance, Carmel Goldwater observes that there are universal and specific belief systems in Latin American societies. Diagnostic methods depend on the origin of illness.81 Yet underscoring the centrality of

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plants, she notes that ‘in divining methods, coca leaves and different coloured maize grains are used.’82 Plants and African Therapeutic Systems As an aspect of its central tendency, African traditional medicine is not exempt from the general trend in which the use of plants in therapy is paramount. Described appropriately as ‘a distillation of African culture,’83 traditional African medicine is steeped in the continent’s rich variety of cultural and belief systems. Among the peoples of Africa, there is a strong belief in gods, ancestral spirits, and other supernatural phenomena. Relationships are said to exist between the living and these entities. Such relationships must be constantly kept in healthy communion. Sickness and health are perceived from physical, spiritual, and psychosocial dimensions.84 Often illness is linked to the dislocation of those relationships. For instance, sickness can be related to the violation of a taboo, which may have socio-religious and cultural undertones. Plants and animals are traditionally important to both therapy and religion. They are used in sacrifice and therapy both to appease angry ancestral spirits and to seek the restoration of health and reconciliation of the ailing with society. Spirits of the departed, including both diabolic and benevolent agents, are believed to inhabit plants and animals.85 For instance, Hausa herbalists claim that the most effective medicinal plants in the bush belong to uncompromising spirits who zealously keep guard over the plants.86 Consequently, they embark on rituals of fortification before attempting to harvest medicinal plants.87 As part of their association with the supernatural, plants are often deified. Among the Igbos, trees as well as ancestors have totemic affiliations to humans. For this reason, trees more than animals are believed to have the ability to incarnate as human beings. It is commonplace for the Igbos to bear metaphorically symbolic names of trees. One such name, for instance, is Oji, which means the Iroko, a symbol of strength, longevity, and distinction. Generally, plants appear to have an elevated status in Igbo cosmology. Trees are regarded as sacred sources of life, healing, and protection. The medicinal value of plants among Africans is not an isolated experience; rather it is a religious one. Plants, or more appropriately, trees, are believed to have the ability to take a human life form on incarnation. They also constitute shrines of worship in the sacred groves where herbs are procured and sacrifices are made to ancestral spirits and other deities.88 Usually, animals are objects of sacrifice, often slaughtered or

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dedicated alive in an act of sacrifice before a shrine. It can be argued that the use of plants does not depend exclusively on their pharmaceutical potency as herbal extracts but on their religious significance.89 Even though plants are used in association with animals and mineral products and other ritual objects, they occupy a pre-eminent place in the African therapeutic tradition and philosophical outlook, perhaps above other objects such as animals and minerals. Summary As is the case with modern medicine, it is inconceivable to think about traditional medicine or therapy outside the use of plants. Across cultures, religions, and belief systems, there is a consensus that the medicine for humanity’s ailments, present and potential, can be located within the plant kingdom.90 In the traditional therapeutic concept, it is quite clear that the two main components of any health system, the healing art and the pharmaceutical art, are fused.91 Therein lies the uniqueness of traditional therapy. It is perhaps this fusion that justifies plants, and generally, plant biodiversity, as the centrepiece of traditional therapeutic practices. Traditional therapeutic enterprise is not an isolated endeavour. It is an extension of the sociocultural, religious, spiritual, and general cosmological outlook of the people. The healing art and the pharmaceutical art may be fused, but their fusion takes a life of its own as a cultural and religions expression, as an art and as a performance. In this form, traditional therapy is far from being an isolated organismic or clinical inquiry or a scientific probe into active substances. It bears stating at this point that protective regimes that do not recognize the unique sociocultural character of traditional therapy would be ill suited to advance indigenous interests. This is fully addressed in the next chapter. Meanwhile, the following section highlights some central tendencies in traditional therapeutic experience. It needs mentioning that traditional therapeutic practices are culture specific: no two cultures apply identical detail to healing skills and associated rituals. Traditional Therapeutic Practices: Beyond Active Substances The Social Position of Traditional Healers In most indigenous cultures, the traditional medical practitioners are the main purveyors of traditional therapeutic practices. The dominant

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theory of illness in many cultures is the supernatural theory. Therefore, traditional healers are involved in multiple roles, which correspond to the underlying cultural, spiritual, and religious belief systems in their societies. In societies where the supernatural conception of illness holds sway, the so-called folk healers are first and foremost priests, or cultic personalities, intercessors, intermediaries, and cultural custodians. Writing with reference to the Yoruba (of Nigeria), Una Maclean argues that ‘[s]ince Yoruba medicine in its broadest sense encompasses the sacred, the social, and the psychological, it is proper that its most revered practitioners should be priests.’92 The traditional medical practitioners occupy a powerful position of authority, and as such they wield enormous influence in traditional societies.93 The categories of these healers may vary from society to society in accordance with the prevailing philosophy of illness and health. For instance, Navajo diagnosticians can be hand tremblers, herbalists, or singers, and each performs different roles in traditional therapy.94 The Yorubas distinguish between two loose categories of native healers: the onishegun, or the herbalist, and the babalawo, or diviner, who is the priest of the cult of Ifa oracle.95 In the pre-Islamic Hausa societies there were as many as six classes of native healers. However, three broad categories of traditional healers are more usually identified. They are spiritists/diviners or religio-medical specialists, herbalists, and traditional midwives or birth attendants.96 However, the categorization of traditional healers defies any consensus. There is a lack of uniformity in the nomenclature assigned to each of the usual three categories. The variations in categorization reflect subtle differences in the way their roles are perceived, which in turn is a function of the dominant cultural predisposition not only of the analyst but also the cultural context in which the healer performs. The three categories, albeit non-exhaustive, indicate specialties within the rank and file of traditional medicine practitioners. Nonetheless, such divisions are not absolute or parochial, as in Western biomedical systems.97 Generally, specialist skills are applied in fair combination, depending on the exigencies. It is not unusual to see traditional healers switching roles among the three principal specialties. Bonesetters, a category of traditional orthopedics, can double as herbalists in the same way that herbalists can employ forms of divination when the need is compelling.98 Similarly, in most cases, diviners or spiritists also double as herbalists in the performance of complex rituals. In the same vein, traditional midwives or birth attendants are wont to make and administer herbal prescriptions. In truth, they perform rituals, say prayers, and listen to

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confessions, particularly when a patient is undergoing a troublesome or prolonged labour. There are different ways by which traditional healers and other members of the therapeutic community preside over healing rituals. A survey of these therapeutic encounters illustrates the thesis that traditional therapy is not a parochial clinical inquiry, nor is it a search for and deployment of active substances but a combination of scientific, cultural, artistic, and religious experience. Within the complex matrix of traditional therapy, the use of plants goes beyond an experience in chemotherapy. Rather, it assumes the form of religious experience in an environment in which ecological sanctity and harmony, auto suggestion, placebo effect, and the power of faith and belief are activated to the patient’s ultimate advantage. The medicine man,99 as opposed to the man of medicine,100 is first and foremost a sage, a priest, a shaman, a cultural icon, and perhaps above all a versatile and sacred artist. In his ethnocentric depiction, John Maddox describes the ‘medicine man’ as ‘not only a primitive doctor, but he is the diviner, the rain-maker, the soothsayer, the prophet, the priest, and in some instances, the chief or king.’101 In some societies, being a priest automatically secures a place in the ruling class. Furthermore, the medicine man is usually of the elderly stock.102 Una Maclean’s survey of Yoruba traditional healers in Ibadan, Nigeria, finds that nearly 70 per cent of them were over the age of forty-five, while young recruits were hard to come by.103 Similarly, Sheila Cosminsky observes that most traditional midwives range from middle-aged to elderly women. Even though some may start practice at a younger age, they are ‘freer to assume midwifery responsibility’ after menopause.104 In most of Africa, old age is a synonym for wisdom, an indication of deep spirituality and closeness to the ancestors. Longevity, as in many cultures, is ascribed to righteousness and/or good living. It is perceived as a sign of the elder’s favour with the gods and ancestors. It is often interpreted as a reward for a long record of harmonious social and ecological relationships. In all of these, the traditional healer is a person of influence, one with capacity for evil and mischief as well as for good. Power and Environment: The Healer and the Sick In most cases, therapy is administered within a cultural setting familiar to the healer and the sick. The two are most likely to subscribe to or share the same world view, including the same theories of illness. This

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is important not only for creating the atmosphere of faith and trust, but, more significantly, it confers legitimacy on the relationship of power that exists between the healer and the sick. They share a world view, and the sick person or their relations do not perceive the healer as a charlatan or impostor. They most probably were witnesses to, or aware of, the healer’s initiation into the healing cult, the case in some cultures. Alternatively, they know the healer’s antecedents, such as where s/he trained, or whether his/her shamanistic prowess is inherited. Today, however, with rural-urban drift, many traditional societies are fragmented. Traditional healers are often itinerant merchants of fortune, settling in urban communities and attending to the needs of countless clients with whom there is no ancestral affinity but only perhaps a shared world view. Furthermore, in other instances, the choice of the healer may have been dictated by some affiliation, totemic sometimes, that the healer shares with the sick. It is usual for the sick and the healer to have some cultic affinity, which constitutes a fundamental platform for therapeutic intervention. In such a setting, the herbal and ritual prescriptions and other recommendations are received and implemented with faith and confidence. The setting satisfies three fundamental therapeutic factors in psychotherapy and psychoanalysis. According to Raymond Prince, the factors are shared world view between healer and patient, warm personal relationship between them, the expectant hope of the patient, and the high prestige of the healer. These factors tap in to the main therapeutic force otherwise called suggestion.105 Two Kinds of Therapeutic Environment The traditional healer knows the significance and effect of a therapeutic environment on the sick. This may be likened to Cecil G. Helman’s ‘context of consultation.’106 In creating the therapeutic environment, the healer assumes the role of an artist of a special or sacred kind. The shaman’s shrine/locus of therapy and his/her official paraphernalia/ regalia present two examples of therapeutic environment. These two are not the only examples of the artistic aspects of traditional therapy. Indeed, the elaborate initiation and apprenticeship processes preceding admittance into the healing profession in most non-Western cultures are rich in artistic and spiritual complement. These are also reflected in, and constitute aspects of traditional therapy. Nonetheless, the two examples – the shrine and therapeutic regalia – depict the therapeutic

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process proper, as opposed to the initiation process. I explore the artistic component in the therapeutic practice, beginning with those two examples. the traditional healers’ paraphernalia and therapeutic regalia At a professional level, traditional healers double as priests and custodians of the sacred. They are members of the privileged class. Their office is set apart from the ordinary folk in the society. They are believed to commune with supernatural forces as intercessors, prophets, messengers, both godly and ancestral oracles. As is commonplace with priests in all traditions, they have a dress code depicting complex symbolism. In its detail, the code is not only culture specific; it is also contingent on the nature of the case at hand or the type of sacrifice to be performed. For instance, traditional healers from Australian and North American indigenous nations have the medicine bag or medicine bundle as an indispensable component of their office. Usually made of the skin of a totemic animal, ‘the medicine man’s bundle’ contains sacred objects required for a particular ceremony.107 According to dated anthropological literature, it is often decorated with feathers, beads, and porcupine quills. Items such as bones, pebbles of quartz, and splinters, together with roots and herbs, are regular contents of the medicine bag. To all of these the healer attaches magical significance.108 The healer’s influence on the sick provokes faith and expectation. This religiospiritual cum therapeutic practice, though culture specific in its details, is not limited only to traditional settings. For example, Catholic priests have dress codes for saying the mass. The liturgical calendar and the nature of the celebration are determinants of what the clergy wear. A funeral mass requires a vestment different than that worn for an Easter service. Each vestment provokes emotions in the faithful. Few Catholics can doubt the spiritual and psychological effect of the purple vestments that not only adorn the priests but are also used to cover the statue of Christ on the crucifix throughout Holy Week. At the secular level, a recent Gallup poll in the United States indicates that higher numbers of patients and members of the public are averse to doctors dressing in ‘casual wear.’ Many would prefer that physicians dressed formally. An officially dressed physician creates an impression of a responsible professional and enhances patient confidence.109 Thus, the uniqueness and symbolism of the costume

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and regalia of priests and healers are common phenomena in the world’s religions and health cultures. The traditional healer’s mode of dressing involves a sophisticated artistic display often uncritically portrayed in dated accounts as bizarre or ‘most absurd.’110 As absurd or bizarre as the healer’s regalia may seem to the unversed, the point here is that in traditional therapeutic practice the healer deploys a multitude of codes and signals transcending the narrow specifics of the active compounds of herbal extracts. For instance, colour and music are important adjuncts to therapy for their significance and symbolism.111 The artistic and metaphysical elements constitute deliberate, spiritual, and meticulous efforts that help to sustain the relationship of power and privilege of the healer, which forges confidence and faith in a therapeutic environment. The fundamentally spiritual significance of every component of the apparel is not compromised. Even ethnocentric commentators acknowledge the importance and effect of the medicine man’s costumes. Thus, as Maddox observes, ‘When exercising his function as a healer, the medicine man invests himself with an attire which is calculated to act as a suggestive influence upon the minds of his patients.’112 Yet it is tempting to dismiss the traditional healer as engaging in ‘artificial divergencies from the normal.’113 The undisputed point is that the efficacy of the herbal or other remedies prepared or prescribed after this experience may not be exclusively a result of the herb’s pharmacological properties114 but a function of the holistic nature of the healing enterprise. the locus of therapy The shrine or locus of therapy is another exemplification of the healer’s artistic/holistic endowment. The place of therapy not only sustains the relationship of power between the healer and the patient but it also has a psychological effect on the patient. In order to have such effect, the place in which therapy is administered must be a sanctuary of sorts, capable of eliciting reverence in the worshipper – in this case, the sick. The parallel between the place of therapy and of worship reinforces the dual role of the healer as a priest and agent of metaphysical forces. In all the religions of the world, the place of worship is a sacred sanctuary where the priests commune with the deity in intercession, prayer, and ritual. Virtually all organized religions and cults have sacred rules and taboos associated with the place of worship. Such places may be anything but ordinary. Traditional therapeutic practitioners invest enor-

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mous efforts in setting up their therapeutic haven, similar to the effort spent in preparing their apparel. In this endeavour, they are painstakingly creative, temporal, and ethereal artists. The healer is not, however, confined to a single place for the performance of healing. The choice of a healing place is often dictated by a number of factors, including the nature of the ailment and the result of a divination. Although divination may be conducted in the healer’s personal shrine, the oracle or the spirit may require that sacrifice or ritual be performed in a specific place115 at a given time, usually at night.116 It is the healer’s duty to prepare the prescribed location for a specific ritual, but the healer has the responsibility to maintain his/her permanent shrine, which doubles as a consulting and diagnostic chamber. Thus, the locus of therapy has to be kept in a uniquely impressive form according to the healer’s cultic affiliation. In all of these, the healer is both an artist and a powerful spiritual figure. A meticulously arranged therapeutic environment may well have a positive effect on the sick. It establishes the healer as a responsible person versed in his/her art.117 The setting is especially meaningful with traditional healers, for whom virtually every object is symbolic and must be placed in a pattern. As in many other cultures, the use of herbs is central to Navajo traditional therapy, yet here their use is uniquely interwined with elaborate ceremonies and psychotherapy.118 More important, in Navajo native therapy, the medicine man spends hours painstakingly preparing mythical paintings in sand, in which he eventually sits the patient. The consequent destruction of the intricate and beautiful sand painting often causes the patients distress.119 Nonetheless, they are ‘convinced by the medicine man’s willingness to sacrifice his art work for their benefit [and] that he was really working to help them and not for his own self-aggrandizement.’120 In essence, the therapeutic environment is an artistic creation with spiritual symbolism. The shaman uses designs for purposes greater than aesthetics alone – triangles, squares, shapes, codes, colours, and so forth and the way they are organized in a therapeutic setting are believed to have spiritual meaning. The Performance of Healing As my interest is in the religio-cultural context of the healing art and not the so-called scientific or objective inquiry, the reference to art here goes beyond the literal. Underlying the artistic manifestations are deep spiritual and symbolic connotations not discernible through a face-value

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conception of art. It is not possible to enumerate every traditional therapeutic activity found in every system, so the emphasis here is on the central tendencies prevalent in many of the systems, because the precise patterns of traditional therapies are highly individualized and case specific.121 Thus, I am conscious of the counsel that ‘with a topic as extensive as traditional medical systems, it must be remembered that every generalization must be qualified by such adverbs and phrases as usually, commonly, or in the majority of cases.’122 In traditional medicinal systems, the two principal components of any health system, namely, the therapeutic and pharmaceutical aspects, are intermingled. The idea of the performance of healing I discuss below incorporates the use of plants as a component of the religious and other belief systems that underlie traditional therapeutic practice. In addition, plants or herbs constitute prescriptions in traditional therapy. In virtually all traditional therapeutic practices, plants, either as herbs or extracts, tend to be prescribed. Words as Performance Religion and belief systems are largely determinant of the nature of traditional therapeutic practices. The reason for this is not far-fetched. Traditional therapeutic practices are based on the supernatural theory of illness, so curative processes and procedures are directed toward seeking harmony with ecological, spiritual or supernatural, and social forces often associated with illness. In the real or imaginary supernatural world, emotive and sensory invocations are communicative tools for penetrating the senses. According to Carol Laderman and Marina Roseman, the idea is that ‘if healing must be effective and successful, the senses must be engaged.’123 For mystical philosophers and those steeped in the supernatural, the way to the soul is through the senses.124 Among the array of healing performances identified as the central tendencies in traditional therapeutic practices are prayers, hymns, songs, and dances; sounds and rhythms; incantations; poetry; oratorical invocations; ventriloquism; recitations; exorcisms; mixing of colours; sacred paintings; ideographic signs;125 trances; seances or transcendental experiences; spells; oratorical performances. The list is not exhaustive. All of these provide the tool, the context, and the mysticism for the ‘multimedia communication’126 in which the medicine man engages the sick in dramatized culture-specific rituals as acts of healing performance. Again, I turn to Navajo singers and their elaborate singing through

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the healing rituals. They perform their singing not only as healers in the Navajo therapeutic heritage but also as members of the therapeutic community who identify with the sick people and partner with them in the bid to restore them to society. Songs, singing, and dancing are performative accoutrements of many a traditional therapeutic system. In the Songhay villages of West Africa’s Niger Republic, there are spirit possession troupes, a loosely organized healing band dedicated to the performance of ‘social healing.’ This is mainly prayers, and community offering for rain, good harvest, and ecological harmony.127 Words are powerful, even more so when they are dramatized as songs, poems, verses, incantations, ecstatic outbursts, and philosophical or oratorical deliveries. In a Yoruba divination ceremony, the babalawo (chief diviner) engages in a sophisticated display rich in poetry, incantation, oratory, and mysticism. This involves bouncing sixteen cola nuts hand to hand, recording their chance fall and establishing a pattern of odd and even throws. The process is complemented by a recitation of particular excerpts from the corpus of sacred verses.128 It is believed among a cross-section of the world’s indigenous peoples and their healers that only those properly initiated can activate the therapeutic powers of plants or herbs by speaking appropriate words and making the right prayers. Among the Yoruba, for instance, ‘the collection of plants intended for use as medicines requires that appropriate incantations be pronounced’ through the chanting of oriki, (i.e., praise names) that directly invoke the plant’s medicinal functions.129 The Aryans who migrated to the Indus Valley about 1500 B.C. wrote the vedas, a collection of classical Indian medical literature. The Rig vedas comprise as many as 1,028 hymns. Many of the hymns are said to ‘praise a blossomless, rootless, leafless substance known as soma.’130 Apart from having tremendous therapeutic qualities, the soma is also used in preventive medicine as well as in achieving ecstasy.131 In fact, it is identified as a form of psychedelic,132 and has been used for divination and psychotherapy.133 It is not only some distinct members of the therapeutic community, such as the Navajo singers and the Songhay possession troupes, that dramatize the use of words as songs and poetry in therapeutic and religious ceremonies. In many Pentecostal churches, ‘speaking in tongues,’ a practice that has a clear biblical and doctrinal basis,134 is part of prayer and worship. As a practical matter, speaking in tongues, which could even occasion some transient experience, is often the norm during healing or deliverance services. The Catholic Church is still

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steeped in the use of Latin, even though it is incomprehensible to a majority of the congregation. In many cultures, traditional healers must, of necessity, be esoteric communicators. Their liaison with the supernatural and the spirit world requires that they speak the ‘heavenly language.’ Rituals are often performed by incantation; the same goes for divinations. In fact, rarely are divinations, diagnoses, sacrifices, or rituals by spiritists or other initiated persons conducted in ordinary language. The mysticism behind communion with spirits, ancestral or otherwise, takes such communication outside the language of mortals, or so it seems. Whether real or imaginary, the use of strange and incomprehensible language has a suggestive effect on the sick or the faithful, as the case may be. Apart from healers and special members of the therapeutic community, the sick in many traditional therapeutic experiences are also active participants in the process of their healing. Through the administration of certain rituals, often at the diagnostic stage, they are initiated into the healing process.135 The initiation enables them to participate in and to feel the total experience of healing. The sick say the prescribed prayers and incantations, recite the prescribed words, before, during, or after the administration of herbal or other remedies. In effect, all the active participants in the traditional therapeutic experience engage in the creative use of words at different dramatic levels. Transcendental Dimension Another central tendency in the performance nature of the healing art is the transcendental experience, also called the notion of trance. The possession state, or trance, suggests an altered consciousness, as is used so often in traditional therapeutic procedures.136 The mysticism and logic behind this experience aside, the drama, the performance, and the holism engage my present interest. Trance is often associated with the medicinal or hallucinogenic effect of plants, usually the narcotic ones.137 Because of this, hallucinogenic plants such as coca, ayahuasca,138 cannabis139 and peyote, among others, take on religious symbolism in many indigenous cultures. The use of medicinal plants to induce ecstatic states in dramatized forms of worship or therapeutic experience is a common tendency across many cultures. For instance, early native Mexican priests used drinks or ointment from the seed of olloliuhqui to induce visions and delirium. Kalingas of the Philippine Islands drink base to the same effect. Peyote and rauwulfia, or snake plants, are

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commonly used among Native Americans as well as indigenous peoples in Mexico. Arizona’s Walapai medicine men have been known to consume decoction of leaves, roots, and flowers of the Datura stramonium to achieve exhilaration. The Japanese drink sake. Northern and some Eastern Africans drink bussa, described as a well-known hydromel made from honey and water.140 West and Central Africans drink palm wine, a regular drink in communal and spiritual engagements. The healer goes into trance through a number of methods, including the inhalation of some hallucinogenic substances, recitation of some incantation, and communication with the spirit world. Gazing consistently on a sacred object for a while could also induce a trance.141 Nonetheless, how a healer comes into trance is a specific experience. Trance is part of the magical prowess of the shaman. The state of trance is required in some instances to receive prophetic revelation and insight for an appropriate diagnosis. Achieving a state of trance could be part of the therapeutic prescription. In such a case, the afflicted would be made to enter into a state of trance with the healer, which provides an experiential outlet for the patient to express sentiments and to relieve emotions that could otherwise be inappropriate.142 In virtually all experiences of trance, hypnotism or possession states, the use of psychedelic plants, music or musicotherapy, singing, dancing, incantations, and associated drama are acknowledged as key factors underlying the precipitation of micropsychosis.143 Multivalence of Traditional Therapeutic Methods There are many methods by which traditional therapeutic endeavours are undertaken. To appreciate the nature of traditional therapy as a holistic enterprise, an audit or identification of the methods in which native healers execute healing or therapy could be helpful. These methods differ from culture to culture, from one subculture to another,144 and even from within a seemingly monolithic culture. Hence, my interest is in the identified common methods, as opposed to specifying the details of any of them. I highlight the contexts in which traditional therapeutic skills are expressed. The shaman’s ways and methods are multivalent and innumerable. In surveying them, we see how the art and science of healing have become inseparable from the lived reality of the traditional peoples as an expression of culture, performance, religion, and a way of life. I reserve for the next chapter how the protection of traditional knowledge in these contexts by means of intel-

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lectual property undermines the holistic template in which these knowledge forms are expressed. Seen from the sociocultural and holistic perspectives, medical systems, as cultural systems, can better be understood from within145 – that is, from the world view of healers and patients, which is in contradistinction to determining the validity of traditional therapeutic practices on the basis of epistemological and jurisprudential framework alien to indigenous peoples. The therapeutic methods, like the healer’s costumes, range from the simple, the bewildering, the rational to the most sublime, depending, however, on who is doing the evaluation. So also is the range of prescriptions. For example, describing the plethora of prescriptions offered by Yoruba traditional healers, Una Maclean observes that the ‘prescriptions represent a fascinating combination of empiricism and sympathetic magic. Certain of the herbs may indeed have a pharmacological action, but others seem to be included by reason of a symbolic affiliation to a diseased organ.’146 Most of the prescriptions, especially those that specify methods of treatment and their administration, may astound the uninitiated. Whether as the webeno, jessakid, or mide of the Ojibwa; the ganza of the Zulu; the dibia of the Igbos; the babalawo of the Yorubas; or howsoever called in different cultures, traditional healers and their ways are enigmatic, their methods, perhaps, even more so. These impressions are more prevalent with those located outside the healer’s cultural sphere of influence. However, shamans or traditional healers do not operate outside a cultural context. They are cultural icons of sorts. As such, the often negative perceptions of them reflect the enthnocentric divide between two world views, the Western and non-Western. In almost all non-Western societies, the major system of health, albeit unofficial, is the traditional one in which the native healer holds sway. Hence, the disdain for traditional therapeutic methods and their custodians reflects the paradigmatic divide between Western biomedicine and traditional therapeutic activities. The crux of the schism is the desire by the former, in alliance with the intellectual property system (patent), to set the so-called scientific standard for traditional therapeutic systems generally perceived as unscientific. The perception that traditional medicine is unscientific derives in part from its multivalent methods, which place the shaman at the centre of a raging epistemic conflict. Among the several methods of the native healer, I identify three principal but related methods: divination, exorcism, and propitiation.

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Divination involves a diagnostic exercise preceding and determining the method of treatment. As part of its process, it involves feats of clairvoyance, trance, seance, ecstasy, and has been associated with demonology, necromancy147 and such things that are wont to be described as ‘incomprehensible.’148 In many traditional systems, illness is generally ascribed to the agency of spirits, ancestors, gods, or other supernatural constructs. These agencies are conceived as forces of evil as well as good.149 Consequently, the traditional healer, depending on his/her diagnosis, may be required to carry out ‘spiritual warfare’ against evil spirits, or embark on an intercessory role in prayer, mediation, and appeasement. Because of his/her privileged social and spiritual role and position, the healer has a capacity for mischief and for doing good. This is in keeping with the general notion of duality in life150 or, more appropriately, is in conformity with the law of opposites. However, the healer’s therapeutic office demands a positive exercise of skill and calling. Thus, he/she often resorts to various religious or traditional methods of exorcism or propitiation to achieve therapeutic effects. In these procedures and processes, the use of plants or their extracts and other animal or mineral substances is a common denominator. Again, in both the practice of exorcism and propitiation, various artistic forms such as musicotherapy, incantations, poetic expressions, drama, and cultural displays are employed. These methods are by no means conventional for those who do not share the belief systems and world views prevalent in many indigenous cultures. Both exorcism and propitiation involve ceremonies of prayer and sacrifice as well as forms of physical treatment. Ritually induced trances and hypnotism, necromancy ‘out-of-body-travel,’ and other transcendental appeals are usual. These are often accomplished by various means, including music, the lighting of candles, burning of incense, smoking of narcotic or hallucinogenic substances and so forth. Exorcism may involve massage therapy, acupuncture or moxibustion,151 although those may be done for purposes other than exorcism. Other forms of exorcism include herbal bath and wearing of amulets or charms.152 Further, methods of exorcism include sucking out of alien substances from the body,153 kneading the body, bloodletting, sweat, steam or mineral baths, use of hot springs, spirit freezing, dietary measures, surgery (especially trepanation),154 application of special ointments, enemas, and taking purgatives or emetics usually made of herbal infusions. Exorcism could also involve blistering with a hot iron and lancing and other external or internal application of herbal remedies,

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most of which are linked to both spiritual and pharmacological potency.155 In addition to the foregoing, there are many other methods of exorcism applied by traditional therapists across several cultures.156 Propitiation is a powerful art. It demonstrates the power of words: poetry and oratory as the complementary skills of the traditional healer. Here, the shaman seeks rapprochement with all benevolent supernatural and spiritual agent(s) implicated in the patient’s ailment. Therapy as an art involves incantations, cuddling, cajoling, flattery, wheedling, coaxing, bribery, praise singing, and so on, directed to the supernatural power(s) or the ‘inhabitants of the imaginary environment.’157 Oblations and other sacrifices involved in the exercise are based on the expectation that the spirits will be persuaded on behalf of patients to relieve their affliction and to restore them to health. In general, conceptions of the supernatural world are influenced by our understanding of the natural one.158 Therefore, it is a common trend to offer sacrifices of food and drink through breaking of kola nut and pouring of libation to the spirits during propitiation.159 In this process supernatural forces are symbolically invited to communion. There are countless ways in which the methods of propitiation are initiated as there are cultures and traditional therapeutic practitioners. Propitiation and exorcism in their various forms reflect the multivalent nature of the methods of the traditional therapist. The Scientific Question and Situational Logic The methods of traditional therapy may not be persuasive to those who evaluate them from the Western scientific paradigm. As will be demonstrated in the next chapter, passing the ‘scientific’ test, for instance, in the manner required by the patent regime of intellectual property rights, would mean fragmenting traditional therapeutic practice and thereby undermining its holistic appeal. Traditional therapy transcends a narrow and reductionist view of science. It is a religion, a culture, and a belief system of a people. A legal protective regime that does not recognize this claim is most likely to sideline traditional medicine. In chapter 1, we saw that science as a way of knowing is a culturespecific experience. Every culture has its own way of knowing and of perceiving phenomena, its own science. Hence, the delineation of what is scientific is heavily influenced by culture. Peter Morley, writing in Culture and Curing, opens by adopting the following observation credited to F.S.C. Northrop:

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One must seriously ask oneself whether superstition and myth, in the derogatory or non-scientific connotations of these words, are not due to our judging a given people from our own conceptual standpoint, rather than theirs … When trouble is taken to find their concepts, then it became evident that everything made sense and that their behaviour and cultural norms followed as naturally and consistently from their particular categories of natural experiences as ours do from our own. I believe it is just as much error to suppose that there are no people anywhere who insisted on empirically[,] and hence scientifically, verified basic concepts before Galileo. Prevalent as the latter belief is, it is nonetheless rubbish.160

We cannot therefore suggest that traditional therapeutic methods are not scientific, even by so-called Western scientific standards.161 Indeed, traditional therapeutic practices are not frozen or isolated anthropological pastimes. Through global movements and interpenetration of peoples, cultures, and knowledge, the practice of traditional medicine, especially in the centres of global financial capitals, responds to influences from orthodox medicine. Traditional medicine’s dynamism is evident in its ability to explore insights from biomedicine, particularly in the areas of product and service delivery. The embrace of formal education and professional training by practitioners, as well as enhanced sanitary culture noticeable in the physical environments that traditional medicine is practised, represent ready examples of positive transformation in the trade. This trend improves communication between traditional healers and allopathic medicine practitioners. Nowadays, established traditional healers and their allopathic counterparts continue to explore opportunities for collaboration. The presence of pharmacological properties in most plants used in traditional therapy is beyond question. The historical roots of most herbal remedies that have entered modern pharmacopoeia attest to this.162 Today, the wave of bioprospecting that has led pharmaceutical companies to focus on plant extracts used in indigenous therapy is a continuation of the historical relationship between so-called science and traditional knowledge. Western or modern medical science began with what is now described as the blind ‘gropings of the medicine man in his effort to expel or appease malicious or angry spirits.’163 The supernatural or agency theory of illness held sway in Western traditions before the Renaissance and the birth of Cartesian materialism. The evolutionary and inextricable link between traditional medicinal use of plants, phytomedicine, pharmacology, and modern medicine generally

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reflects the hypocrisy of the notion that indigenous therapeutic culture is non-scientific even in the Western sense of science. Traditional therapeutic systems’ emphasis on the holistic approach, and hence on the psychosocial paradigm, is now recognized by modern medical science. Contributions from medical anthropology, aesthetic anthropology,164 behavioural psychology, sociology and public health point to the efficacy of situational logic in therapy.165 Thus, the effects of religion, prayer, culture, belief systems, and the doctor-patient relationship, even though bereft of empirical precision in measurement, can no more be dismissed by allopathic medicine.166 For instance, the cultural and religious orientation of traditional therapeutic practices activates the power of suggestion,167 that is, the confidence and expectation of relief in the sick. The whole of the traditional therapeutic environment is such that it generates hope in the sick, hope regarding the competence of the healer. In addition, faith and confidence in God or gods is enhanced, for example, by acts of propitiation168 and appeal to supernatural forces. Modern medical science believes that the presence of hope in the sick person influences the prospects of recovery. This view is strongly shared within the Judaeo-Christian tradition as well. Unlike what some would have us believe, suggestion is not only ‘the stock-in-trade of the savage doctor’169 but also a phenomenon recognized in modern medical science. Science has associated therapeutic relief with reflex actions induced by the law of suggestion.170 Again, his ethnocentric sentiments notwithstanding, Maddox could not resist admiring the effect of suggestion in indigenous healers’ methods. In his concession he notes that ‘[t]he methods used in hours of sickness are calculated to give the feeling of confidence [and] to inspire in the mind of the sick the greatest hope and expectation for recovery.’171 Another instance of situational logic in therapy shared by traditional therapy and Western medical science is the placebo phenomenon. Placebo refers roughly to ‘the power of one’s belief in an impotent remedy to stimulate self-healing.’172 Helman defines it as ‘the “total drug effect” but without the presence of a drug.’173 Again, the underlying idea is that the mindset or psyche of the sick can trigger the body’s intrinsic ability to heal itself. It has been claimed that there is a placebo or symbolic element in all drugs prescribed by doctors, be they pharmacologically active or not. According to Helman, nearly one-fifth of prescriptions written by general practitioners in the United Kingdom are on the basis of placebo or the drugs’ symbolic functions. He affirms that

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on a yearly basis, at least 500,000 people in the United Kingdom are symbol-dependent patients.174 The placebo effect has been described as ‘one of the most powerful tools in any healer’s armamentarium.’175 It is an empirical phenomenon, patronized by both Western medical science and traditional therapy as an instrument of ‘physiological repair.’176 Lastly, both traditional Chinese medicine and the Ayurvedic system represent highly sophisticated approaches to therapy. Their scientific foundation is beyond question. For instance, part of the epistemological foundation of the Ayurvedic system is the close relationship between celestial bodies and human beings. Thus, astrology is a component of Ayurvedic medical knowledge. Part of the Ayurvedic theory is that the constitution of the human being parallels the universe; put succinctly, the human being is a miniature universe. Therefore, her health and well-being in all their ramifications ‘depend on the harmonious relationship or interaction between the amount of radiation or energy received from the universe and the amount radiated by his own body.’177 The scientific nature of astrological facts has been the basis of the relationship between astrology and medicine. To the subdiscipline of medical astrology, science owes a highly structured classification of diseases based on their derivative planetary influences. From the earliest account of medical science, the study of astrology has been complementary to medical inquiry and knowledge.178 Ayurveda means ‘the science of life.’ It encompasses many scientific categories: physical, chemical, and biological; and it is composed of two major groups: physicians and surgeons, including various specialties within the two categories.179 Similarly, the scientific foundation of traditional Chinese medicine and therapy is not in dispute. Apart from the scientific aspects of the yin and yang theory, ancient Chinese medicine recognized specialty in the medical field in four areas: nutrition, internal medicine, surgery, and veterinary.180 It is speculated that the earliest medical case-recording system is owed to the scientific nuances of Chinese medicine.181 Perhaps because of the tradition of writing and record keeping, the Ayurvedic and traditional Chinese medicine are today ‘the most developed systems of traditional medicine.’182 That also may account for their progressive integration into, or intermingling with, Western medical science more than any other traditional medical systems. Even then, neither the Western scientific criterion nor its patent handmaiden may provide the best basis for the validity and the protection of traditional therapeutic systems. Laderman and Roseman have

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observed that ‘treatment of the patient may be judged as scientific procedure appropriate or lacking, or as an art form whose elements are working toward a specific end.’183 If science is a way of knowing, then traditional therapeutic practices are, for all practical purposes, scientific in so far as they are rooted in peoples’ culture, religion, and world views. These three are epistemic categories, and they are manifested or applied in divergent art forms, especially in the healing arts. There is, at best, a faint line between what is scientific and what is not. Thus, traditional therapeutic practices are both science and art forms and their validity may not depend on a narrow view of science or an intellectual property jurisprudence that reifies that understanding. Summary In the practice of traditional medicine, there no strict separation between the knowledge of therapeutic properties or active substances of plants, animals, or minerals and the therapeutic practices in which they are deployed. In indigenous philosophy, knowing the therapeutic properties without the appropriate ritual may not induce healing. In most cases, pharmacological properties do not exclusively influence the effect of medication on human physiology or emotional state.184 In traditional therapeutic systems, the two basic aspects of any medical system, the pharmaceutical and the therapeutic, are fused. The fusion is not only based on the holistic world view prevalent in traditional societies but is reinforced by the role of religion and a belief system, as well as the supernatural theory of illness. Every traditional therapeutic system is, therefore, a total package in which the role of plants is central. It represents, in the words of Charles Good, ‘the authoritative delivery of a culture’s cumulative experience with the healing arts.’185 A traditional therapeutic system expresses a people’s cultural heritage; in other words, it ‘belongs to the distinct identity of a people.’186 No culture known to civilization operates in a health care vacuum. Good rightly observes that ‘[e]ach culture has produced over centuries its own adaptive methodologies for coping with illness. These embody an indigenous etiology, that is, a system explaining the occurrence of illness and disease based on the world view and religions of the particular people in question.’187 Yet traditional medicine is not all about rituals and no substance; it is dynamic and resilient. It is not possible to unpack the interwoven nature of the pharmaceutical and therapeutic aspects of traditional therapeutic systems. To do

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so would do serious harm to that system. Separating or fragmenting the holistic paradigm of traditional therapeutic systems would lead to the mutilation of indigenous cultural heritage and identity. The essence of traditional therapeutic systems, especially as they relate to the use of plants, lies in their sociocultural, religious, or spiritual significance. Drawing the guided anthological excursions of this chapter into the legal framework of this book, the next chapter demonstrates how the Western intellectual property system, with emphasis on scientific criteria, undermines the fused and holistic nature of traditional therapeutic knowledge and practices. In placing emphasis on active substances, intellectual property, especially patents, reifies scientific knowledge and undermines the sociocultural context of traditional therapeutic practices.

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5 Intellectual Property Rights and Traditional Knowledge of Plant-Based Therapy: The Filtration of Indigenous Knowledge

Western biomedical practices do not recognize the sociocultural and religious aspects of therapy or the associated belief systems prevailing in indigenous cultures. The biomedical paradigm is a clinical enterprise based on the ‘scientific’ and organismic theories. That model draws a clear distinction between the therapeutic and the pharmaceutical aspects of medical intervention, a distinction that is not made in indigenous therapeutic contexts. Under the biomedical model, medicinal plants are purely utilitarian products from which valuable compounds are extracted, refined, and commodified for the purpose of medical treatment. Under that model also, conceptions of the individual’s relationship with plants and ecological forces are perceived as unscientific or, at best, merely romantic. This chapter revisits the debates over the use of intellectual property rights for the empowerment of traditional knowledge, with specific focus on traditional medicine. It aims, in part, at demonstrating that the conceptual thrust of the conventional intellectual property rights regime is suited to the biomedical and Western scientific paradigm. To a significant degree, intellectual property rights, especially the patent regime, undermine the sociocultural contexts of traditional knowledge of plant-based therapy (TKPT). Thus, using a narrow scientific yardstick, conventional intellectual property facilitates a systematic filtration or isolation of the cultural character of TKPT. As a result, we have a situation where TKPT is at risk of being undermined by the much touted Western intellectual property mechanism, which, proponents argue, provides a needed empowerment to indigenous and local communities. This raises a number of concerns. First, applied to traditional medicine, the Western intellectual property model may not deliver on

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its promises generally, especially in the areas of the conservation of biological diversity, the enhancement of medical pluralism, and the indigenous quest for self-determination and economic empowerment. The discourse about intellectual property, in the context of indigenous or local community, often refers to indigenous knowledge and cultural practices in a broad sense. In this context, knowledge embraces and yet transcends such amorphous concepts as indigenous/traditional ecological, environmental, biological/biodiversity, forest, agricultural, and medicinal knowledge. All of these are interrelated and sometimes overlapping concepts. In many indigenous communities, these disciplinary demarcations are not as significant as they are often presented in Western disciplinary curricula. Yet the idea of intellectual property in the specific context of traditional medicine is directly mentioned or implied in virtually all the instruments on indigenous peoples reviewed in the preceding chapters. Because of my emphasis in this book on traditional medicine, the analysis that follows begins with a cursory review of such provisions and other regime-building programs that make references to intellectual property rights in the context of medicinal knowledge of indigenous or local peoples. I then explore the arguments already outlined in chapter 1 on the use of intellectual property to protect indigenous knowledge and their implications in the context of TKPT. Intellectual Property Rights in the Context of Traditional Medicine Intellectual Property Rights and Traditional Medicine in Key Instruments Key legal and quasi-legal instruments for the protection of indigenous knowledge recognize some link between intellectual property rights and traditional medicine. In this regard, an analysis follows of select instruments, namely, the International Labour Organization Convention No. 169,1 the United Nations2 and the Inter-American3 Draft Declarations, as well as the Convention on Biological Diversity (CBD).4 The ILO Convention No. 1695 makes provisions on ‘social security and health’ in part V. It makes no direct link between intellectual property rights and traditional medicine per se.6 But there are various scattered references in the Convention requiring governments to preserve indigenous cultural identity, institutions, and practices, including those of health.7 These include traditional therapeutic knowledge and practices that constitute aspects of indigenous cultural identity. Gov-

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ernments have power to adopt appropriate measures, including intellectual property rights, to satisfy the Convention’s provisions. The nature of traditional therapeutic methods and practices affirms their richness in intellectual property features. Some of those features, as articulated in article 2(viii) of the Convention establishing the World Intellectional Property Organization (WIPO), include literary, artistic, and scientific works, performances of performing artists, scientific discoveries and inventions in all fields of human endeavour.8 The nature of traditional therapeutic methods locates them within these categories. There is no reason why TKPT, as an embodiment of indigenous cultural attractions, cannot be a focus for intellectual property protection under ILO’s Convention No. 169 on that merit.9 Unlike the ILO, the United Nations Draft Declaration on the Rights of Indigenous Peoples has elaborate and more direct provisions covering diverse aspects of indigenous knowledge, including traditional medicine. For example, article 29 provides in part as follows: ‘[I]ndigenous peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property rights. They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of properties of fauna and flora, oral traditions, literatures, designs and visual arts.’10 The provision alludes to the interconnectedness of traditional knowledge forms, of which medicinal knowledge is but an aspect. The above provision covers, to an extent, the various cultural components of traditional medicine explored in the last chapter. It acknowledges traditional medicine as the embodiment and, at the very least, a component, of indigenous cultural manifestations. It also endorses the culture-specific character of science and technology. Along the pattern of the United Nations Draft Declaration, the InterAmerican Draft grants to indigenous peoples ‘full ownership, control and protection of such intellectual property rights as they have in their cultural and artistic heritage …’11 It further confers on them the right to take special measures to ‘control, develop, and protect and to claim full compensation for the use of their sciences and technologies including their human genetic resources in general, seeds, medicine, knowledge of plants and animal life, original designs and procedures.’12 The InterAmerican Draft does not directly provide for intellectual property rights, but it presupposes their pre-existence in relation to indigenous cultural and artistic heritage. To the extent that traditional medicine is an aspect

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of indigenous culture and heritage, it is covered under the provisions of this instrument. With regard to indigenous medicine, knowledge of plants, and so forth, the Draft confers on indigenous peoples the right to take special measures to control, develop, and protect these resources, including rights to full compensation for the uses of such knowledge presumably by non-indigenous interests. Although it is not clear that those special measures include intellectual property rights, it does not exclude them either. The CBD makes no direct link between intellectual property rights and traditional medicine as such. In fact, it has no provision on traditional medicine. However, the convention is one of the most significant instruments for the protection of the traditional knowledge of indigenous and local communities, which includes traditional medical knowledge. Intellectual property is a policy option recognized in the CBD for the protection of traditional knowledge and the attainment of the convention’s objectives.13 Article 16(5) is the convention’s most direct provision on intellectual property rights. In it, the CBD recognizes that patents and other intellectual property rights may influence the implementation of the CBD and urges parties to ensure that intellectual property is employed in a manner consistent with the convention’s objectives. The point must not be lost that the CBD emphasizes protection of and reward for traditional knowledge relevant for sustainable uses of bioresources.14 Because TKPT is premised on indigenous respect for the sanctity and interconnectedness of all life forces, it falls within CBD’s emphasis on ‘traditional lifestyles relevant for the conservation and sustainable use of biological diversity.’15 Furthermore, the strategic importance of biological resources for traditional medicine stems from the fact that outside the non-medical16 aspects of traditional therapeutic experience, biological resources constitute the mainstay of traditional medicine. In addition, the emphasis on uses of plants in traditional therapy presupposes a traditional medicinal regime mainly sustained by the ‘live wire’ of plant biodivesity. Thus, the fate of traditional medicine is inescapably tied to the management or otherwise of biological diversity and genetic resources. Although the CBD is concerned chiefly with traditional knowledge in the context of biodiversity conservation, it is nonetheless inextricably linked to traditional medicine. Consequently, CBD’s intellectual property rights provisions may not be detached from the uses of biodiversity components for medicinal purposes. Finally, as

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the foremost international legal framework regime on access to genetic resources and biodiversity conservation, the CBD deals with the primary source for the empirical expression of divergent forms of indigenous knowledge – biodiversity. The CBD is conscious of the fact that such knowledge is vulnerable to exploitation by actors outside indigenous and local communities.17 Traditional medicine is arguably one of the foremost interests that drive the desire to extend conventional intellectual property rights coverage to traditional knowledge.18 Furthermore, it is also probably the most susceptible to appropriation and, as such, the most exploited form of traditional knowledge. The CBD has continued to grapple with the intricacies and fine details of a viable genetic access modality or protective regime19 that would be capable of stemming the tide of appropriation of indigenous knowledge. Perhaps as the most topical and highly debated subject in this ongoing effort to protect indigenous knowledge, intellectual property is crucial to achieving the objectives of the CBD. Without doubt, the connection between intellectual property rights and traditional knowledge in general and traditional medicine in particular is amply established in key international legal instruments on the protection of indigenous knowledge. The next section explores policy initiatives in the area of intellectual property protection for traditional medicine. Intellectual Property Rights and Traditional Medicine under the WHO and WIPO Attempts by means of legal and quasi-legal instruments, such as the ILO Convention No. 169, the CBD, and the United Nations and InterAmerican Drafts, to draw the connection between intellectual property rights and traditional medicine in specific terms are somewhat blurred and perhaps not quite eloquent. However, the picture is different at the levels of policy and regime building. To this end, the World Health Organization (WHO), the World Intellectual Property Organization (WIPO), and other intergovernmental bodies have been able to make the connection in the course of their respective roles in international law and policy development. The WHO’s first global traditional medicine strategy20 does not identify intellectual property rights as being one of its five key objectives, but the fifth and last objective speaks of ‘managing information on TM/ CAM [traditional medicine/complementary alternative medicine] by

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acting as a clearing house to facilitate information exchange on TM/ CAM.’21 It is not quite clear how this objective can be attained, but intellectual property is key to exchange of information. The WHO’s traditional medicine strategy recognizes intellectual property as a policy consideration in an ongoing debate over the protection of traditional medicine.22 It rightly characterizes ‘intellectual property issues’ with regard to access to traditional medicine as ‘unresolved.’23 Before launching the 2002–5 global traditional medicine strategy, the WHO, through its traditional medicine program, had broached the question of intellectual property rights for the protection of traditional medicinal knowledge. The WHO’s interest is spurred in part by the increasing awareness of the value of traditional medicine and associated local knowledge, and their role in enhancing primary heath care delivery. In addition to the WHO’s traditional medicine/intellectual property scheme are some other related initiatives. The United Nations Conference on Trade and Development (UNCTAD) represents one such example. In 2000, UNCTAD sponsored an Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices.24 UNCTAD’s program was executed in collaboration with other intergovernmental organizations, especially the CBD and WIPO secretariats.25 Building on this momentum, the WHO held the first ever Interregional Workshop on Intellectual Property Rights in the Context of Traditional Medicine.26 Thus, the WHO’s efforts are part of the ‘tone setting’ in an ongoing debate at several intergovernmental and nongovernmental forums across the globe, albeit with less specificity to traditional medicine. The broader themes are traditional knowledge in its ramifications, and the questions of access to genetic resources that the CBD has, since 1992, provided the momentum for. The WHO has helped in some measure to spotlight the intellectual property discourse in the context of traditional medicine. The first policy objective of the WHO strategy on traditional medicine is the integration of traditional/complementary alternative medicine into national health care systems. According to the WHO, the second component of that policy is the ‘protection and preservation of indigenous TM [traditional medicine] knowledge relating to health.’27 This involves rendering help to ‘countries to develop strategies to protect their indigenous TM knowledge.’28 The anticipated result of this initiative is ‘increased recording and preservation of indigenous knowledge of TM including the development of digital TM libraries.’29 The

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digital library concept for traditional knowledge is an intellectual property scheme, which is being elaborated by the WIPO. Even though it was India’s initiative, the WIPO deserves credit for supporting the idea of digitalizing traditional knowledge and saving it on a database. The idea reflects the WIPO’s efforts on the issue of intellectual property rights in the context of traditional knowledge, including traditional medicine. The 2000 WIPO Forum on Intellectual Property Policy and Strategy in the 21st Century30 resolved to take the advantage provided by information technology to set up a Traditional Knowledge Digital Library (TKDL). A contentious and highly debated concept, the TKDL has as many opponents as it has supporters. The principal argument against this measure is that it will result in the devaluation of traditional knowledge in the long run. First, it makes traditional knowledge readily available to all and does not accomplish the objective of protection, even though it is a check against misattribution. Second, collection in a database suggests that traditional knowledge is frozen and not dynamic, a situation that does not account for incremental innovation. On the other hand, databases are not absolute and are subject to update. Third, not all traditional knowledge can be expressed in a fixed form. Fixation is erosive of the originality of traditional knowledge since most indigenous cultures are oral. Fourth, the idea of a database subscribes to the translocation of traditional knowledge from its cultural environment and, as such, undermines its unique spiritual and cultural character. Fifth, the operational modality of the digitalization process raises issues of funding, questions of interpretation, and concerns over the scope of details to be included or excluded. This is so given the divergences in epistemological narratives even within putative monolithic indigenous cultures.31 In general, the idea behind the collection of traditional knowledge in a database, such as a TKDL, is to facilitate access to documented information on traditional knowledge. In this way, patent examiners are enabled to spot bogus claims on a pre-existing traditional knowledge not eligible for the grant of a patent. Theoretically, patents cannot be issued on pre-existing knowledge or innovation. However, without adequate control over such information in a database, traditional knowledge could be exposed to a high rate of appropriation. The notion of a TKDL has its head start in India. It was developed to prevent India’s Ayurvedic national heritage from being appropriated and turned into a private/corporate monopoly.32 Such databases are made available throughout the world via the WIPO’s Intellectual Prop-

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erty Network. At end of 2000, the WIPO was already demonstrating its pilot project on electronic exchange of traditional knowledge documentation.33 In that year, the WIPO’s online prototype TKDL, which included information about medicinal plants and their uses and associated knowledge, was in the process of being fine-tuned. The TKDL is a system capable of checking the narrow view of prior art.34 It is a potential check on the tendency to classify unpublished indigenous knowledge forms as information within the public domain and open to appropriation by all. As will become clearer in the subsequent pages, the United States and Japan use a narrow definition of prior knowledge that excludes unpublished information to facilitate the granting of local patents filed on the basis of documented informal knowledge from outside those countries. Apart from the TKDL, the WIPO has been involved in a number of policy initiatives and awareness programs on intellectual property rights and traditional (medical) knowledge. Four of these deserve mention. In 1998, the WIPO organized an Asian Regional Seminar on Intellectual Issues in the Field of Traditional Medicine.35 In 1999 it organized a Roundtable on Intellectual Property and Traditional Knowledge.36 In conjunction with the United Nations Environmental Program, the WIPO has conducted two case studies regarding the role of intellectual property rights in the share and allocation of the benefits accruing from the use of medicinal plants.37 Last but not the least is the WIPO’s 1998–9 global Fact-Finding Missions on the Intellectual Property Needs and Expectations of Traditional Knowledge Holders,38 mentioned in the previous chapter. A reflection on the 2001 final report of the WIPO missions supports the thesis that traditional medicine is perhaps the foremost driving force in the desire to protect traditional knowledge by the use of intellectual property rights or other policy options. The WIPO’s missions address the needs and expectations of all traditional knowledge holders. However, in that exercise, the prominence of concerns over traditional medicine was quite palpable. The highpoints of intellectual property rights issues in the arena of traditional medicine outlined in the report of the first international forum on intellectual property rights and traditional medicine are as follows: The prevention of the acquisition of intellectual property over traditional medicine by its documentation and publication as searchable prior art for purposes of patent examinations; [it is interesting how this conflicts with WIPO’s Traditional Knowledge Digital Library (TKDP) concept], a reas-

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sessment of what constitutes prior art for purposes of patent examinations; the testing of options for the collective management of intellectual property rights for traditional healers’ associations, a study of customary laws which protect traditional medicine in local and traditional communities; testing the applicability of the present intellectual property system for the protection of traditional medicine, and awareness-raising as to the role of intellectual property protection in relation to traditional medicine.39

ILO Convention No. 169, the UN and Inter-American Draft Declarations, the CBD, the WHO, the UNCTAD, and the WIPO initiatives, among others, have in some ways attempted to extricate traditional medicine and associated knowledge from the larger body of traditional knowledge for the purposes of intellectual property. This view may not be entirely persuasive. It is possible to argue that the instruments chiefly speak of traditional knowledge in broad terms. The attempts to isolate traditional medical experience are merely marginal where such experiences are not situated in the larger context of traditional knowledge. Nonetheless, it cannot be wholly denied that traditional medicine (or, for the purpose of this book, TKPT) is a key aspect of traditional knowledge. Its protection has received specific attention in the broader policy debates. In its various manifestations, TKPT embodies cultural aspects and heritage of indigenous peoples and local communities. To that extent, there is sufficient evidence from the instruments and other policy initiatives reviewed above that TKPT, either on its merit or as a component of traditional knowledge, attracts a groundswell of legal and policy consensus as a subject of intellectual property protection. Intellectual Property Rights and Traditional (Medicinal) Knowledge: The Demand of Indigenous Non-Governmental Organizations In addition to the foregoing are non-governmental initiatives championed mainly by indigenous bodies, sometimes in collaboration with intergovernmental organizations. I have referred to some of the initiatives and their sponsoring organizations in chapter 3.40 Through a number of declarations/statements at conferences, meetings, conventions, workshops, and so forth, the indigenous NGOs canvass for the protection of the traditional knowledge of indigenous peoples through intellectual property rights, albeit with cautionary qualifications. While

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these declarations do not have the status of law, they reflect current thinking and consciousness in indigenous circles. More important, the influence of these organizations in setting the agenda for and generating normative processes cannot be underestimated. Notable examples of this trend include the First International Conference on Cultural and Intellectual Property Rights of Indigenous Peoples, which issued the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples in 1993.41 In the same year, a Conference on Indigenous Intellectual Property Rights issued the Julayinbul Statement on Intellectual Property Rights.42 In 1994, the Coordinating Body of the Indigenous Peoples of the Amazon Basin (COICA), at the end of a Regional Meeting on Intellectual Property Rights and Biodiversity co-sponsored by the UNDP, reiterated the Mataatua Declaration in the COICA Statement.43 In 1995 the South Pacific Regional Consultation on Indigenous Peoples and Intellectual Property Rights issued its Final Statement arising from the UNDP Consultation on Indigenous Peoples and Intellectual Property Rights.44 In 1998 the First International Congress of Ethnobiology issued the Declaration of Belem, Brazil, urging ‘strong action’ for the protection of indigenous knowledge.45 In 1999 at Seattle, indigenous peoples issued the Indigenous Peoples Seattle Declaration on the occasion of the Third Ministerial Meeting of the WTO in a similar vein.46 Generally, NGOs such as Genetic Resources Action International (GRAIN), Third World Network (TWN), Quaker United Nations Offices (QUNO), and South Centre are similarly inclined. These declarations and statements are collectively reinforcing. The common threads that run through all of them include the entitlement of indigenous peoples to intellectual property rights over their knowledge as an aspect of indigenous cultural identity and self-determination; scepticism toward Western forms of intellectual property rights; the need for other means of reward and recognition of indigenous knowledge; the sacred spiritual bond between indigenous peoples, their biological diversity and relationship with their land and natural environment; and the rejection of or reservation about the patentability of life forms. It is noteworthy that a number of the non-governmental initiatives have not attempted to clearly isolate traditional medicine from the body of indigenous knowledge. Instead, these declarations speak of intellectual property over indigenous or traditional knowledge as an integral aspect of the people’s heritage and quest for self-determina-

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tion. Thus, even though intellectual property become central to the discussion about indigenous peoples and their knowledge, what has become rather contentious is the ‘fitness question’ – that is, whether Western intellectual property constructs can or do conform to the epistemic and sociocultural context of indigenous or non-Western peoples and their world view. In that discourse, indigenous knowledge is construed generically, with no felt need to isolate its various manifestations or contrast them with other standards. Consequently, in the next section, I elaborate on the intellectual property debate as it applies to indigenous knowledge generally, without necessarily isolating traditional medicine. Following that, I examine the extent to which intellectual property, especially in the context of traditional medicinal knowledge, is at odds with indigenous interests and aspirations. The Intellectual Property Debate At the dawn of the twenty-first century, there is an overwhelming pressure to reconcile indigenous knowledge with Western models of intellectual property rights for the putative benefit of indigenous and local communities. The traditional knowledge of the non-Western peoples has taken the centre stage of global discourse at virtually every front, including trade and economic empowerment, food, agriculture, the environment (especially biodiversity conservation), health, human rights,47 and cultural policy. Traditional knowledge continues to receive increased attention mainly because of the explosion in biotechnology and the emergence of the global knowledge and information society.48 These phenomena have generated huge insights into the values and immense contributions of indigenous knowledge systems and peoples to humanity’s quest to improve society and to protect the environment on a sustainable basis. Since intellectual property is the West’s primary mechanism for the allocation of rights over knowledge, it is the dominant point of discourse in the effort to compensate the practitioners of vital indigenous knowledge. But there is no consensus on the fitness of intellectual property to accomplish the expectations or objectives its advocates have raised for holders of local knowledge. What we have to date is a raging debate that has nonetheless influenced policy shifts regarding traditional knowledge both nationally and internationally, especially with the coming into effect of the Convention on Biological Diversity. As indicated in the introductory chapter, there are two major parts of

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the debate. The first posits that by its nature indigenous knowledge is not amenable to the peculiarities of Western intellectual property rights or vice versa. Hence, a middle-of-the-road approach has been described as a hybrid or sui generis form of intellectual property capable of accommodating traditional knowledge forms.49 The second part concedes the uniqueness of indigenous knowledge, but it insists that historically intellectual property rights, as policy instruments, are malleable. As such, they can be tailored to accommodate and protect indigenous knowledge forms. Such manoeuvring, it would seem, presupposes new or hybridized forms of intellectual property rights different from the mainstream ones. Both sides of the argument find a meeting point in the notion of a sui generis form of an intellectual property rights regime, even though its details are open to different configurations and interpretations. It is apparent, in the sketch of the central themes in the intellectual property debate below, that the common and dominant proposal for sui generis forms of rights is cast within the shadow of the Western intellectual property paradigm. In the context of TKPT, if we take advantage of the malleable character of intellectual property rights to create a sui generis model, it is not easy to overcome the conceptual and epistemic schism that alienates intellectual property rights from indigenous knowledge. Intellectual property, especially patent, subjects local knowledge to Western scientific standards of validation. In the process, intellectual property systemically filters or shortchanges the sociocultural aspects of indigenous therapeutic experience for the advancement of biomedical ethos. Conceptual Objections Most of the objections regarding the applicability of intellectual property rights to indigenous knowledge are conceptual. They are based on the notion that Western intellectual property rights are chiefly a capitalist creation designed to serve the market economy and advance commercial interests as a matter of priority over cultural sensitivities.50 In advancing commercial interests, intellectual property facilitates the commodification of all things, including indigenous biocultural and ecological experiences for purposes of business and trade.51 Fixed and commodified as a physical manifestation of ideas, sacred knowledge is measured on an economic scale of values and auctioned accordingly. For indigenous peoples, commodification and commercialization are

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not acceptable ways of dealing with their sacred knowledge and ecological experience. For them, the sanctified communion that they share with other living and non-living beings in a complex partnership cannot be subjected to an economic scale of values.52 The capitalist orientation of conventional intellectual property rights is in apparent conflict with the communal nature of ownership and the sociocultural structure of indigenous societies.53 The strict individualistic constructs of property in the Western mould do not fit into indigenous ideals.54 Commodification of all things, including knowledge, is an industrial model55 approach that is often extended to biological resources. Intellectual property rights promote commodification by rewarding the physical manifestation of knowledge or ideas. In the industrial model, economic utility is the prime value of ecological resources and associated knowledge. Indigenous people maintain that, in contrast to the intellectual-property-backed industrial model, their relationship with ecological forces is sacred, and that the relationship transcends economic utility or the allure of market forces. Therefore, conceptually, the Western intellectual property model poses an epistemological and moral conflict to indigenous knowledge systems and world views. The concept of intellectual property is perceived as incompatible with the indigenous moral, spiritual, religious, and sociocultural ethos that, fundamentally, derives from ecological sanctity and the interminable relationships of all life forms. For instance, Western intellectual property’s willingness to patent and brazenly market life forms is morally reprehensible in the eyes of many indigenous peoples because it results in the loss of ‘moral sovereignty.’56 Advocates of intellectual property rights acknowledge the ‘legitimacy’ of indigenous concerns over the commodification of indigenous sacred plant resources and biocultural knowledge through the intellectual property system.57 For example, they argue that patenting of indigenous knowledge does not necessarily require its exploitation.58 The act of patenting can, in some situations, serve the defensive purpose59 of frustrating or regulating the appropriation of indigenous knowledge.60 Lending support to this view, Peter Drahos notes that property rights in indigenous knowledge need not result in open trade; rather, they can serve a regulatory purpose to such trade. He avers that ‘[i]t is a mistake to think that property only has an appropriation function. It also functions as a means for self-defence or survival.’61 However, these arguments do not address what happens when defensive patents expire and go into the public domain and become everyone’s to explore.

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Another key conceptual issue relating to the nature of conventional intellectual property is its connection to Western science. Western intellectual property rights legitimize a narrow view of science. For instance, the patent regime is based on Western science. It does not recognize an alternative cultural account of science. As will be demonstrated, tests of patentability are based on an ethnocentric Western scientific narrative in which all other ways of knowing are either delegitimized or filtered in order to bring them into conformity with Western episteme.62 The Communality Argument Closely connected to the conceptual question is the argument that indigenous knowledge is usually community property deriving from communal effort,63 so each member of the community is entitled to it. Hence, none may exercise exclusive claim, as the concept of intellectual property rights requires. Generally, individualism is the conventional model for entitlements to intellectual property rights within the conventional system..64 Thus, an ownership structure based on the community stands in sharp contrast to a knowledge protection that romanticizes the individual as the primary source of intellectual effort. There is no question that in most indigenous societies, some knowledge forms are associated with family, kinship, clan, communal, and other social units. But that notion is not entirely true. Apart from the perceived difficulty that exclusive individual claim to indigenous knowledge portends, the communal nature of indigenous knowledge tends to (mis)represent it as being in the public domain, but communal ownership is not a synonym for the public domain. Essentially, intellectual property rights, particularly patents, do not accrue to knowledge within the public domain. One of the essential characteristics of intellectual property rights is the appropriation of public goods into the private domain.65 For societies with established communal systems of knowledge, the argument is that the individualistic nature of intellectual property may have adverse consequences.66 There is some merit to such an argument. Surely, creativity in the indigenous domain is not, for the most part, the lonely, secluded, individual process romanticized in the West.67 A number of writers have argued, however, that the regime structure in many traditional societies is not uniform. It is an overgeneralization to hold that all knowledge forms are held communally among indigenous and local communi-

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ties.68 A better view is that indigenous or traditional knowledge is riddled with cultural dynamics and complexities. For instance, in the two Australian cases of Yumbulu v. Reserve Bank of Australia69 and Milpurrurru v. Indofurn Pty,70 the courts recognized the copyrights of individual aboriginal artists to their creative designs in the context of an intricate communal ownership structure. As an aspect of individual interest, traditional healers in many indigenous cultures have a tendency to keep their knowledge of medicinal plants secret, and can only divulge them under some ritual and secrecy prescriptions sanctioned by culture.71 Drahos notes that ‘[i]ndigenous peoples have perhaps evolved more complex structures for access and use of knowledge than western communities … Some knowledge may be open to all (including non-indigenous people) to use … some knowledge may be open to all clan members to use … while other knowledge may only be available to the initiated … and some individual may be given temporary appropriation rights over some knowledge ...’72 Anil Gupta argues that the notion of traditional knowledge as a community property should not be considered in isolation. Indeed, entitlements are not equal to all community members, as they do not make equal contribution to innovation and conservation. Therefore, the communality argument is not a strong one to exclude indigenous knowledge from conventional intellectual property rights.73 Indeed, corporate bodies, which are usually owned by a community of investors, are not inhibited by the same argument.74 Driving this point further home, the WIPO notes that ‘[t]he fact that the creators/inventors of traditional knowledge are not easily identifiable does not necessarily prevent applicability of existing intellectual property standards. Most intellectual property assets are owned by collective entities, which in many cases represent large and diffuse group of individuals (General Motors owns intellectual property rights on behalf of a community of shareholders that is much larger and more diffuse than most identified traditional communities).’75 Legal Personality A somewhat related and yet subtly different version of the last argument is one based on legal personality. The argument is that the communal or collective nature of indigenous societies implies that they lack the requisite legal or juridical personality on the basis of which they can apply for and hold intellectual property rights. Under conventional

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intellectual property rights, only juristic persons in the form of natural and corporate entities are the appropriate holders of rights in intellectual property. In some way, the legal personality argument reflects the individual centredness of intellectual property rights. In effect, it logically sprouts from the theoretical foundation of intellectual property rights as a reward mechanism for individual efforts. Virtually all the objections against the collective/communal argument apply with equal force to the legal personality argument. In addition, legal personality is a creation of law; its categories are not closed. There is no reason why it cannot be extended to indigenous collectivities in the same manner as it is accorded corporate or artificial entities. For all practical purposes, corporate organizations are communities of investors who enjoy the privilege of the protection arising from their artificially created personalities. It is the state that decides who enjoys such status. Indeed, the creation or recognition of various types of moral or artificial persons emanated from the values, cultures, and ideologies of each domestic legal system.76 If corporate and other entities can be recognized as legal persons, even more so should families, kindred, clans, bands, and any other relevant social categories within indigenous customary norms. Perhaps, of all the arguments against the applicability of intellectual property rights to traditional knowledge, this is the least persuasive and most self-serving. The Public Domain / Common Heritage Argument Again, this argument is related to the penultimate one regarding the community/collective nature of indigenous knowledge. Here, the argument is that indigenous knowledge of plants and other biological resources does not constitute original information. Originality is a key criterion for intellectual property.77 Not considered original information, indigenous knowledge is seen at best as pieces of historical and often incremental information that reside in the public domain.78 This argument is also enunciated in some analysis as the concept of intellectual commons: ‘[a] global entity constructed by the collective labours of all humanity over all time.’79 And as such, they (indigenous knowledge forms) do not qualify for intellectual property protection. These knowledge forms, the argument goes, ought to be available to every member of society.80 What is downplayed or undermined in this argument is that, historically, the concept of the commons is group-specific and, like intellectual

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property, territorial and not absolute. As demonstrated earlier, among indigenous cultures, there are layers of rights regarding use and access attaching to the perceived intellectual commons even among the same sociocultural groups.81 Many indigenous peoples regard the common heritage argument as self-serving by those who make it. The argument reveals the inconsistency of the Western intellectual property regime.82 When the same knowledge is presented ‘scientifically,’ it ceases to reside in the public domain and becomes entitled to protection. Generally, indigenous dealings with biological resources are perceived as not ‘scientific,’ inventive, or original enough to merit protection as intellectual property rights. The perceived ‘rudimentary’ nature of such dealings does not involve sufficient ‘ingenuity,’ ‘human intervention,’ or ‘inventive step’ to sift the bio-cultural experience from the state of nature or public domain wherein they reside. This ‘transition’ from the state of nature, or public domain, is necessary for purposes of a patent, and will become clearer in the subsequent discussion on patentability of inventions. Opponents argue that the exclusion of indigenous knowledge and biological resources on the basis of common heritage is not sustainable on that principle. The concept of a distinct international cultural heritage, as opposed to common heritage, is in its infancy in international law.83 Even though the idea has been floated concerning objects that belong to the global cultural commons, that has not been suggested at the expense of the national and territorial origins of the objects. Rather, it speaks to the responsibility of states to preserve those objects. Moreover, the focus is on movable cultural items, not intangible (indigenous) knowledge forms. Biological resources and associated knowledge do not equate to ‘common heritage’ as interpreted in international law. These resources and their human custodians are located within defined territories of sovereign nations. Although the common heritage doctrine is not a settled one, it is not generally applied to resources within national boundaries.84 In addition, even though traditional knowledge may be held collectively in a communal setting, it is not an all-comers affair open to the whole world. Biological resources in indigenous communities are outside the common heritage principle as enunciated under international law. What is more, the idea of biological resources as public property has since ceased to be an accepted statement of reality. This fact derives support from CBD85 jurisprudence and the emerging international law on indigenous peoples, wherein indigenous peoples’ rights over their natural resources form the corpus of the new regime.

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Other Considerations of a Practical Nature The remaining strands of the arguments involve practical considerations that arise in seeking to make intellectual property rights amenable to traditional knowledge. I identify three such practical considerations. The first is that because traditional knowledge is oral in nature, there is always difficulty in transforming it into a written form, especially of a technical kind like a patent specification. Closely connected to this is the requirement of publication. Mainstream patent regimes do not give regard to undocumented knowledge. Generally stated, a prior art is determined by publication in a written form, and since traditional knowledge forms are predominantly oral, they are automatically excluded. The exclusion of traditional knowledge on this score continues to be challenged. For example, it is the practice in certain intellectual property regimes (like a plant breeders’ right, where it is not possible to fully describe an invention), to deposit a sample of an invention as an alternative to written specification. Consequently, it would not be out of place to temper the requirement of writing in order to accommodate indigenous knowledge. The second practical consideration is the fixed term of intellectual property rights. For example, most intellectual property regimes, including patents and copyrights, are premised on a fixed term. Traditional knowledge is an immemorial and transgenerational phenomenon,86 which evolves on an incremental basis. Indeed, in a sense traditional knowledge is an antithesis of a tenured knowledge or property.87 When and where it begins and ends is indeterminate. Third, as a practical matter, there is lack of financial power in indigenous communities to fund the expensive process of intellectual property applications, especially the patenting formalities. In addition, policing the infringement of intellectual property, which mainly happens across borders, is often beyond the reach, sophistication (or lack of it), and the financial strength of many indigenous and local communities. Furthermore, when traditional knowledge is retrofitted into a ‘scientific’ or different epistemological narrative by means of intellectual property, it becomes difficult to detect acts of appropriation.88 Intellectual property has been malleable in its evolution. It has continued to adjust to the dynamics of innovations and policy dictates. Hence, these last three considerations are not by any means insurmountable if there is a determined resolve to bring traditional knowledge into mainstream intellectual property. Such attempt would, however, require some trade-offs.

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Patents and Traditional Knowledge of Plant-Based Therapy: Investigating the Trade-offs The objections and endorsements regarding the use of intellectual property rights for the protection of indigenous knowledge have perhaps equal weight in the scale of validity or persuasiveness. To explore these arguments further, I proceed on the proposition that intellectual property rights are malleable enough to address all the practical obstacles that indigenous knowledge presents. In other words, I assume that traditional knowledge can be made to comply with the dictates of intellectual property rights. Applying the patent regime to TKPT, I examine the ramifications of reconciling intellectual property rights with TKPT and vice versa. The reason for the choice of the patent regime is obvious. Nonetheless, it needs highlighting. Traditional therapeutic practices involve most aspects of intellectual property rights. Comparatively, however, the patent regime bears the closest relevance to TKPT. It is the most discussed regime of intellectual property in relation to TKPT. Traditional use(s) of plants for medicinal or therapeutic purposes is substantially based on plant biodiversity. TKPT is implicated in the discourse about biodiversity conservation, access to genetic resources, and reward for indigenous knowledge. The principal international regimes in this disciplinary intersection, such as the CBD and the TRIPS Agreement, recognize the central role of patents as the most pertinent intellectual property regime in those contexts.89 However, TKPT, like any other traditional knowledge form, is not neatly separable into specific regime categories of intellectual properties. It manifests in more than a single category of intellectual property. For instance, once they are expressed in a fixed form, a traditional healer’s prayers and incantations in a healing ritual are subjects of copyright. A healer’s knowledge of a plant’s therapeutic property, or the attendant therapeutic process, is almost always a patentable subject matter. Apart from patents, other mainstream intellectual property categories such as trademark, copyright, and geographical indications of origin are peripheral in terms of their empirical significance to traditional therapeutic processes. The Nature of Patents There is often no direct statutory definition of patent. Usually, reference is made in statutes to ‘letters patent for an invention.’ Curiously, ‘invention’ has no categorical definition; it is open to the courts to determine

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whether the statutory reference to ‘any new and useful art, process, machine, manufacture or composition of matter …’90 or improvements thereof amount to an invention on which the law confers the privilege of a patent. David Vaver notes that the ‘taxonomy of invention – something by definition unexpected or unforeseeable – is a North American conceit.’91 Observing that the United Kingdom has never defined invention, Vaver points out that instead the Statute of Monopoly of 1624 refers to granting patents for ‘any manner of new manufactures,’ saddling judges with the duty to determine what is patentable.92 European patent jurisprudence now adopts a negative definition of invention by identifying what is not patentable.93 Generally defined, patent is an exclusive right conditionally granted by the state to inventors or their surrogates to manufacture, use, sell, or to exploit an invention, including process, usually within national borders for a limited number of years. Patent, Fritz Malchup volunteers, is ‘that which confers the right to secure the enforcement power of the state in excluding unauthorized persons for a specific number of years from making commercial use of a clearly defined invention.’94 A patent right is construed as a motivation for inventive endeavour and innovation. Like intellectual property generally, patent right is a creature of national law. However, recent developments, such as the WTO/TRIPS Agreement – a supra-national scheme – have ushered in the evolution of a global normative regime of intellectual property rights. According to Drahos, ‘[t]he global period of intellectual property is marked by a weakening, at least in relation to property, of the principles of territoriality and sovereignty.’95 Part of the consequence of the global intellectual property order is the convergence of a uniform substantive standard of intellectual property rights. Thus, even though national governments have rights to make determinations over intellectual property rights, the TRIPS Agreement provides a minimum or normative global standard of intellectual property protection, including conditions for patentability. It is common knowledge that the TRIPS Agreement was deeply influenced by the United States, Japan, and European countries.96 Despite that, the intellectual property regimes in most former European colonies reflect the inherent cultural bias and Western origin of intellectual property. Nonetheless, before the global era, national governments were not as circumscribed as they now are under the TRIPS Agreement.97 The general conceptual structure of Western patent regimes has been

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outlined for global application in the TRIPS Agreement. My discussion of patents in the analyses that follow will draw from that agreement, and where necessary, the American and other Western regimes that the TRIPS Agreement is an extension of. Plants as Patentable Subject Matter Like that on other life forms, historically, the idea of a patent on plants was not enthusiastically embraced. Currently the sentiment against patent on plants remains strong among indigenous peoples. The journey of plants to the patent office is a checkered one, which lends credence to the thesis that intellectual property rights are not only malleable but also dynamic instruments for advancing national interests, for influencing social policy, and for engineering social change. The politics of plant patent is played out more at the levels of food, seed, agriculture, and horticulture than with respect to medicine and health. Indeed, plants have become patentable subject matter in national and global patent regimes. However, indigenous opposition to the patenting of life forms, including plants, continues. This is a reflection of an indigenous world view in which every life form is sacred and is considered humankind’s partner in life’s unbroken web. Patents, or generally intellectual property rights on life forms, especially plants, started first in American domestic law in 1930 before it was extended internationally in 1961 through the International Convention for the Protection of New Varieties of Plants (UPOV)98 and consolidated in 1994 by the TRIPS Agreement. The first U.S. legislative attempt resulted in the Plant Patent Act of 1930,99 which limited patent rights only to asexually reproducing plants, a category that excludes the majority of food crops. The legislation was essentially directed at the horticultural industry. The Plant Patent Act exempted plants from the strict requirement of mainstream patent by lowering the threshold.100 Forty years later, the Plant Variety Protection Act of 1970 extended patent protection to sexually reproducing (or seed) plants, despite internal and international objections. The act created a sui generis rights for plant breeders – otherwise known as plant breeders’ rights (PBRs). This audacious legislation was complemented by the sweeping judicial decision in Diamond v. Chakrabarty,101 which endorsed a blank cheque for the patentability of ‘everything under the sun made by man,’ including all life forms. In that case, the U.S. Supreme Court found that an

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artificially created bacterium is a composition of matter of which there was no prior art and is therefore patentable. Similarly, plants, seeds, and tissue culture have been held to be patentable subject matters.102 The European countries103 and Canada have been more restrained than the United States on the subject of patentability of plants and life forms. Article 53(b) of the European Patent Convention prohibits patents on, inter alia, plants and animal varieties. While not rejecting the view that plants are patentable, the Supreme Court of Canada has imposed a higher standard. For instance, in Pioneer Hi-Bred Ltd. v. Commissioner of Patents,104 the court maintained that claims of invention of new plants must be founded outside the realm of natural law and occurrences. In December 2002, it turned down the bid by Harvard researchers to obtain a patent for the famous Harvard Mouse.105 To some degree, this is an indication of the lingering reluctance of the Canadian court in regard to the patentability of so-called higher life forms. In Harvard Mouse, a patent was sought for a genetically modified mouse that was deliberately predisposed to cancer for the facilitation of cancer research. Meanwhile, the mouse was already patented in the United States, Japan, and much of Europe for over a decade. A sharply divided Supreme Court of Canada ruled that the mouse itself and its potential offspring could not properly be described as inventions under section 2 of the Canadian Patent Act, consequently, they cannot be patented in Canada as the applicants had sought. The court held, however, that the biochemical process for the modification of the mouse was patentable. Patentability of higher life forms remains a contemporary subject of social and ethical debate in Canada and elsewhere. The lingering reservations over the patentability of plants appear to have been put to rest by two significant international instruments. The first is the UPOV, an initiative of industrialized countries. For some practical purposes, UPOV is akin to the extension of the U.S. Plant Variety Protection Act to other industrialized countries. The Convention requires members to institute PBRs, a sui generis rights regime, for the protection of breeders’ new plant varieties or, in the alternative, to protect such varieties by means of patent.106 Historically, the plant breeder regime was not concerned about the use of plants for medicinal purposes. Today, however, there is nothing inhibiting such a focus. Nonetheless, PBRs appear to have been conceived for, and concerned about, the marketing or commercial needs of the horticultural, agricultural, and seed industries. For example, contrary to the use of plants for medicinal purposes, the usefulness of the

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protected variety under UPOV is not of essence. It suffices that the variety is new, distinct, uniform, and stable. The latest version of UPOV is the 1991 revision.107 It allows parties the option to exempt farmers from the use for propagating purposes of materials protected by PBRs in so far as the ‘legitimate interests of the breeder’ are not compromised. Loosely referred to as farmers’ rights or privileges, such exemptions enable farmers to save seeds procured from PBRs holders for replanting.108 Farmers’ rights are conceived to acknowledge farmers’ immemorial contributions in the conservation and development of plants’ genetic potentials. The UN’s Food and Agriculture Organization (FAO) resolution 5/89 defines farmers’ rights as ‘[r]ights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources particularly those in the centres of origin/diversity. Those rights are vested in international community, as trustees for present and future generations of farmers, and supporting the continuation of their contributions as well as the attainment of overall purposes of the International Undertaking.’109 Article 9 of the 2001 FAO Treaty on Plant Genetic Resources for Food and Agriculture110 provides a legal backing for the concept of farmers’ rights. Specifically, Article 9.3 says, ‘Nothing in this Article shall be interpreted to limit any rights that farmers have to use, exchange and sell farm-saved seeds and propagating materials subject to national law as appropriate.’ But for the saving provision – ‘subject to national law as appropriate’ – the 1991 UPOV’s subjecting of the farmers’ exception to the overarching interests of plant breeders is not in harmony with the new FAO treaty. As part of its national law, the U.S. Congress in 1994 effected an amendment to the 1970 Plant Variety Protection Act and removed the farmers’ exemption, which is optional under the 1991 UPOV. Accordingly, in that country it is ‘expressly illegal for farmers to sell or save seeds from proprietary crop varieties without receiving permission from breeders and paying royalties.’111 Under UPOV dispensation, farmers may run afoul of a PBRs holder if they exercise their natural right to replant (protected) seeds. UPOV applies mainly to industrialized country members of the Convention, even though developing countries are aggressively being recruited into that elite club. All the same, plant patents or PBRs now extend beyond the UPOV sphere by reason of the TRIPS Agreement. The TRIPS Agreement112 makes unequivocal provisions for plant patents, or a sui generis form of protection for plant varieties. Those

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provisions transcend agricultural or horticultural uses of plants that appear to be the primary focus of UPOV. TRIPS’ provisions encompass medicinal and all conceivable uses of plants. The agreement’s general patentability conditions and specific provisions for plant patent or sui generis protection are set out in its controversial article 27: 1. Subject to the provisions of paragraph 2 and 3 below, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application …113 2. Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public, including to protect human, animal or plant life or to avoid serious prejudice to the environment provided such exclusion is not made because the exploitation is prohibited by domestic law 3. Members may exclude from patentability … (b) Plants and animals other than microorganisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, members shall provide for the protection of plant varieties either by patents or by effective sui generis system or by combination thereof ... [Emphasis added.]

Article 27 is the heart of the TRIPS Agreement. It highlights perhaps the most sensitive and controversial issues at the core of North–South disagreement over intellectual property rights, particularly the patenting of life forms and intellectual property over indigenous knowledge. Another equally contentious issue in TRIPS deals with the restrictions of compulsory licensing requirements under article 31, which has radically circumscribed the ability of developing countries to have access to patented drugs to deal with national public health emergencies, such as the AIDS pandemic.114 The seriousness of this situation is epitomized by the disagreement between the United States and South Africa concerning the latter’s procurement of badly needed HIV/AIDS drugs. That the issue was resolved politically goes to confirm how the TRIPS Agreement serves the U.S. political and economic agenda at the expense of developing countries. TRIPS is criticized for not making direct provision for the protection of indigenous knowledge.115 However, article 27 is TRIPS’ closest reference to indigenous knowledge, albeit by implication (patents on all inventions).116

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Yet an equally contentious subject of article 27 is its provision regarding sui generis rights (for plant variety protection). There is no agreement on the model of the sui generis right required under the TRIPS Agreement. However, the United States and most developed country members of the UPOV prefer that an ‘effective sui generis system’ under the TRIPS Agreement be equated to the standard required under the UPOV. This view is not supported anywhere by TRIPS. Susan K. Sell has rightly observed that ‘[i]t is important to note that TRIPS does not require UPOV protection; UPOV protection is not the only permissible approach to sui generis protection.’117 Developing countries have continued to distance themselves from the UPOV version of a sui generis model. While enlarging the rights of plant breeders, UPOV now makes farmers’ rights/privileges optional and subject to breeders’ interests. To a large degree, the conceptual distinction between patents and PBRs has been compromised under the UPOV. This state of affairs is not acceptable to indigenous interests and developing countries, where it is the tradition of farmers to save, reuse, trade, and exchange seeds with one another. From time immemorial, farmers have created and continue to experiment with new hybrids. In these ways, they remain key contributors to the planet’s biological diversity.118 For practical purposes, what is required in the guise of PBRs is a patent-like right, making the sui generis notion in the context of plant breeders virtually irrelevant.119 Michael Halewood points out that initially the relaxed form of protection for plant varieties was necessary to protect the plant-breeding industry. The applicable criteria were that the varieties had to be distinct, uniform, and stable. However, as advances in biotechnology facilitated the engineering of new varieties that satisfy the novel and non-obvious criteria, the revision of the UPOV in 1991 was necessary to add the criterion of novelty to the three previous conditions.120 Cumulatively, these conditions bring PBRs very close to conventional patent. Indigenous interests are better served by sui generis systems that, unlike the extant PBRs, do not necessarily have to be an imitation of Western intellectual property. Part of the problem with advocating intellectual property rights for indigenous knowledge is the inability to extricate the sui generis construct from the stranglehold of Western intellectual property models.121 The point here is that despite the reluctance in indigenous communities, plants are now patentable subject matter. Contracting states are required to protect plant varieties by either patents or sui generis rights (e.g., PBRs), or by both. For practical

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purposes, it is doubtful whether the prevailing concept of PBRs has truly a sui generis status. Focusing on TKPT, I outline cursorily the tests of patentability122 as enunciated in the TRIPS Agreement. Tests of Patentability and Products of Nature Rhetoric Under the provisions of article 27 of the TRIPS Agreement reproduced in the last subsection, subject to members’ optional exemption, ‘patents shall be available to all inventions’ (i.e., including plants). Such inventions must be ‘new,’ must involve an ‘inventive step’ (i.e., non-obvious), and be capable of ‘industrial application’ (i.e., useful). These criteria are consistent with the requirements for patentability in most national jurisdictions. Without delving into the details of the underlying debates on the tests of patentability in relation to traditional knowledge forms,123 it suffices to restate in general terms the common argument that the requirements for patentability do not take into account the nature of indigenous knowledge. For instance, because of its transgenerational and immemorial nature, the newness of traditional knowledge or its point of origin for the purpose of novelty is indeterminate. Second, because, for the most part, indigenous bio-cultural knowledge involves dealings with resources in their natural state, these dealings are said to be obvious. In a sense, then, such dealings are said not to involve sufficient human ingenuity required to sift the knowledge from nature (public domain) to human invention (private domain). The controversies inherent in the tests of patentability with regard to traditional knowledge are perhaps better appreciated in the context of the discredited argument for the exclusion of patents on so-called products of nature. As a matter of theory, a patent right does not extend to products of nature. This notion is informed by moral, ethical, and empirical considerations. However, with the increasing interest in the life sciences related to the industrialization of plants, animals, and even human genetic resources, there is little doubt that the relevance of this age-old tradition may eventually lie in theory and history. Ikechi Mgbeoji notes that the increased influence and visibility of the pharmaceutical and chemical industry resulted in a crack, and eventually in the ultimate collapse, of that fundamental postulate of patent law. Hence, over the years, ‘“the product of nature” exclusion has lost respectability in informed circles.’124 Plants and plant derivatives, which are now patentable, are products of

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nature. But originally courts were inclined to require a high standard of ‘human intervention’ in order for a variety of plant to be recognized as a patentable invention.125 The critical issue is the determination of what distinguishes ‘an invention’ and sufficient ‘human intervention’ from products of nature. Such a distinction is a crucial site of appropriation and disinheritance of indigenous knowledge forms and their practitioners respectively. Indigenous dealings with plant resources for medicinal, agricultural, and other purposes are generally perceived to be within the realm of nature. In indigenous hands, plant or animal resources are said to be naturally occurring, and indigenous intervention is not sufficient or inventive enough to sift them from nature. The indigenous peoples are said to deal with the plant and animal resources in their ‘unpurified form.’ Only artificially purified ‘natural products,’ in the language of Western science, qualify as sufficient human intervention and, as such, an inventive step. According to Lester Yano, ‘Often what is required to convert the natural substance into a useable product is a minimum amount of human intervention such as grinding of a seed, boiling of a plant, and the creation of a poultice.’126 These are practices common to indigenous intervention. However, a patent requires more specificity. It demands the identification, isolation, synthesizing, or purification of the active substance, more so than is relevant for indigenous purposes. It is these ‘scientific’ prescriptions that are acceptable as sufficient human intervention. The argument here is that artificially purified versions are not naturally occurring; hence, they are products of human invention. Such a conclusion contradicts the natural origins of the products. In addition, it also amounts to a misinterpretation of indigenous efforts. The question to consider is this: what makes the process of scientific purification more inventive than the various sophisticated processing methods of indigenous peoples by whose efforts the natural source of the compound, including the method of extraction and appropriate uses, are usually identified? Thus, despite the discredited nature of the product-of-nature exemption, the Western intellectual property system is inclined to keep it alive, resulting in the undermining of indigenous knowledge. However, the obstacles to traditional knowledge posed by discriminatory tests of patentability and the rather unpersuasive productsof-nature argument have not discouraged segments of indigenous knowledge advocates. The insistence is strong in many quarters that

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indigenous knowledge can be amenable to intellectual property rights, or vice versa. Now it requires examining the trade-offs implicit in that line of argument. The Case for Patentability of TKPT The gulf between indigenous knowledge and mainstream intellectual property continues to be scrutinized. The argument has been made that intellectual property laws are not cast in stone. They are instruments of socioeconomic policy and have been known to shift over time to accommodate changing demands and times. The point is that in virtually all respects, intellectual property is known to have either lowered or compromised its standards in order to accommodate new and emerging technologies and other peculiar situations. In some instances, intellectual property laws have yielded new or hybrid regimes, i.e., the sui generis genres, so called because they do not fit into the conventional model. PBRs, layout designs (topographies) of integrated circuits, and copyright protections for architectural drawings, computer softwares, databases, and protection of electronic commerce and business methods are a few examples of how intellectual property regimes have responded and continue to respond to the demands of change. In the realm of traditional knowledge, both the CBD and the TRIPS Agreement encourage the use of intellectual property rights or sui generis models to accommodate local knowledge. Currently, we are witnessing the transition phase of the CBD-instigated changes in many developing countries and several indigenous communities. In some instances, national and regional authorities are hammering out access regimes to genetic resources in accordance with CBD provisions. Some of these regimes make provisions regarding indigenous knowledge while addressing the issue of access to genetic resources.127 The operational modalities of these evolving regimes are yet to be tested. Nonetheless, simultaneously, some contractual schemes are already in place in furtherance of indigenous-knowledge-friendly schemes. In most of these, intellectual property rights remain central. For instance, there have been various suggestions for an intellectual property scheme based on the concept of the community, as opposed to the private rights’ appeal of mainstream intellectual property.128 Proponents of indigenous intellectual property rights insist that the perceived barriers, which intellectual property rights pose to indigenous knowledge and peoples, are self-serving to those who benefit from the

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delegitimization of local peoples’ knowledge. There is no reason why indigenous knowledge cannot, for example, be eligible for the grant of patent, trademark, copyright, and so forth. Still keeping our spotlight on the patent regime, I consider the trade-off involved in making a case for a patent right on indigenous knowledge with regard to traditional medicine. Patentability of TKPT: The Epistemic Cul-de-sac Subscribing to the notion that traditional knowledge is patentable assumes that all the bureaucratic impediments can be mitigated, and that most, but not all, of the conceptual barriers are manoeuvrable. First, it is no longer fashionable to insist that indigenous communities do not have legal personality. Second, indigenous peoples, both as collectives and individuals, can apply for patents on the basis of their local knowledge. Third, the reservation about the commodification of sacred knowledge, which is the consequence of mainstream intellectual property rights, may now seem unrealistic. Instead, indigenous peoples are urged to explore the potential of conventional intellectual property as a ‘more astute and pragmatic response to the dilemma of appropriation.’129 Fourth, other questions such as the duration, costs of application, and the maintenance of patents can be resolved or stretched in favour of indigenous peoples. The proponents of intellectual property rights, especially patents in the indigenous knowledge arena, have not seriously considered that by insisting on the patent framework they subordinate indigenous knowledge to Western scientific validation. The proposal for indigenous intellectual property is still couched within the Western scientific or epistemic frame. In that setting, indigenous knowledge and interests may be further eroded. To buttress that position, I revisit the concept of TKPT in relation to the biomedical paradigm at this point. As discussed in detail in the last chapter, traditional medicine or TKPT is a subset of broader indigenous knowledge. It is a sociocultural and religious experience and a major demonstration of indigenous philosophy and world view. The indigenous use of plants for medicinal purposes in many cultures bears this out. Many plants are sacred in indigenous cultures. Beyond their curative properties or active compounds, the specificity of which is not much of a priority in indigenous therapy, plants are regarded as living participants in the complex web of relationships of life forms. The therapeutic bond between the healer

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and the sick and other members of the therapeutic community is forged on common beliefs in the supernatural in its multiple theories of sickness. Ceremonies, songs, prayers, and complex rituals are integral parts of indigenous therapy. Chapter 4 demonstrates that indigenous therapeutic tradition is essentially based on a psychosocial approach to sickness. Afflictions are evaluated and diagnosed with a strong focus on the social elements and circumstances in the life world of the sick. The aim of therapy is, therefore, the restoration of the sick to the therapeutic community. Because of the psychosomatic foundation of indigenous therapy, as well as its religious and cultural dimensions, the traditional therapeutic concept represents a fusion of the healing and pharmaceutical arts.130 None of those two components of the medical system can be clearly severed or isolated from the other in the indigenous context. In contrast, Western biomedicine, loosely speaking, is a clinical and organismic enterprise. Clearly cast on a strict ‘scientific’ model, it views the supernatural theory of illness with suspicion, while giving limited consideration to the psychosocial understanding of ailment and therapy. Any phenomenon that cannot be ‘scientifically’ rationalized is practically unaccounted for. The organismic and scientific approach is a fragmentary and parochial epistemic tradition. All phenomena it cannot explain, rationalize, or otherwise justify in scientific and empirical terms are not useful and ought to be discarded. Under Western biomedical culture, the healing and the pharmaceutical arts are clearly distinct. Plants’ medicinal properties are explored through the pharmaceutical and chemical sciences. The target is to isolate, synthesize, or purify the active substance for eventual commodification, marketing, and use in therapeutic intervention that is fundamentally organismic. Such is the approach the patent system is tailor-made to empower and legitimize. It is a reductionist and exclusionary model that reifies Western science, often at the expense of alternative ways of knowing. In order to fit into the patent mould, TKPT must necessarily be subjected to fragmentation, chemical scrutiny, and an interpretative form that does not recognize its most vital elements. The fusion of the pharmaceutical and the healing arts must be severed. In short, TKPT must be rid of all its associated cultural baggage and then decontextualized. Try as they may to smooth the rough edges between indigenous knowledge and the patent system, advocates for the patentability of indigenous knowledge have not addressed the problem posed by the use of Western scientific criteria to (in)validate local knowledge. In fact,

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that is not within their contemplation. Rather, using Western scientific criteria to demonstrate the validity of indigenous knowledge is central to their case.131 Ironically, such a position undermines the multicultural character of science explored in the first chapter. In submitting indigenous knowledge to a narrow form of validation, patentability advocates make indigenous peoples and indigenous knowledge victims of what Arun Agrawal calls the ‘instrumental logic of development.’132 That logic builds on the ‘conceit’ or genuine belief that ‘scientific’ knowledge is a passport to progress and the transformation of social processes.133 Since indigenous knowledge is useful to development, it therefore requires scientific validation in order to serve as an instrument for scientific progress.134 For Agrawal, the first step in the logic is the use of science to separate useful indigenous knowledge (relevant to development) from all its other components, which are discarded. Then, useful indigenous knowledge is particularized. The second step in the logic is the validation process of the particularized knowledge via ‘the criteria deemed appropriate by science.’135 A corollary of the particularization process is abstraction, by which useful aspects (e.g., chemical elements) are exploited to the exclusion of rituals and other cultural components of traditional medicine.136 The particularization, validation, and abstraction of indigenous knowledge forms facilitate their documentation, archiving, and fixation. Consequently, indigenous knowledge is circulated and used widely in a process of generalization.137 Clearly, the patent regime is a process of ‘scientization’ of indigenous knowledge (or in this context, TKPT). That process is a filtration process. Once local knowledge is rid of its cultural context and other non-scientific rituals, there is hardly anything worthy of indigenous imprimatur in the transition of knowledge from particularization to generalization.138 The selective conversion of indigenous knowledge alters the necessary unity of indigenous people and their knowledge; hence, there is no compelling reason to pay attention to indigenous peoples.139 The central thesis of the instrumental logic of development, and by extension the view of advocates of indigenous patents, is that intellectual property will boost the economic fortunes of local peoples. But a contrary claim, namely, that intellectual property is capable of eroding indigenous interest, warrants serious consideration. Waxing rhetorical, Naomi Roht-Ariazza wonders whether ‘[b]y attempting to manipulate the prevailing Western paradigm to suit their needs,’ indigenous peoples will ‘accelerate the very commodification of knowledge and living things that many find objectionable’; or whether they

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will ‘be forced to take on foreign categories as their own, to shoehorn their world views and values into an alien set of concepts and laws.’140 In a similar vein, Agrawal warns that the use of international patent systems to protect the interests of the poor may serve as ends in themselves and undermine the underlying complicity of power with the dominant culture in weakening indigenous episteme.141 Scientific knowledge and power have always been willing tools in the hands of those who appropriate indigenous knowledge and dominate indigenous peoples. The patent institution and practice is sustained by the Western epistemic system. Extended to TKPT, the patent system seeks to rid local people of all the sociocultural, spiritual, religious, and ceremonial paraphernalia, and most important, the psychosocial basis of therapy. It requires severing the fusion of the pharmaceutical and the healing arts in traditional medicine. By stripping TKPT of its material character, the patent regime demands the separation of traditional medicine from its conceptual foundation. The emphasis and the concentration of effort on the pursuit of active compounds make little, if any, meaning in the indigenous therapeutic systems. It may, however, not be entirely true that indigenous peoples do not know the therapeutic properties of medicinal plants. In fact, traditional healers are known to identify the specific components of medicinal plants with therapeutic effects. These include the bark, root, sap, or stem, including, often, the ecological setting for their harvesting as well as other processing activities that involve chemical or pharmacological inquiry. In adjusting to the pressures of urbanization and the imperative for preservation and packaging, many traditional healers are known to extract, process, and label their plant, animal, mineral, and other medicinal preparations based on the relevant therapeutic properties for ease of administration and marketing. Nonetheless, the identification of a specific active substance is hardly a matter of any serious consideration in traditional therapeutic culture.142 Traditional healers do not, as a matter of deliberate practice, engage in exact scientific interpretations and decoding as they are known to Western science. Generally, the knowledge required in native society is the identity of the plant,143 along with other complex context-specific rituals within the native philosophy of health and healing. Biopiracy Patents: Beyond Economic Considerations Today, almost on a regular basis, we read about the hue and cry of many indigenous peoples over the appropriation of their knowledge. The

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increasing number of patents originating from on plants or crops of indigenous origin obtained by Western-based pharmaceutical, chemical, and agricultural corporations evince such appropriations. Biopiracy is the trendy term that captures such developments.144 Most charges of biopiracy insist that such patents are undeserved and undeserving. Anti-biopiracy campaigns are usually buttressed by claims of monetary value lost, and fortunes made/stolen, by indigenous peoples and multinational corporations, respectively, in each case of appropriation of indigenous knowledge. The campaigns for the protection of indigenous knowledge tend to project intellectual property rights as ends in themselves. Such ends are often perceived in terms of immediate financial rewards. It would seem that all that is required is for indigenous and local peoples to swap roles with the ‘biopirates.’ The truth is that it will be short-sighted to suppose that local and indigenous peoples’ interests are assuaged by a letters patent or royalty dollars. Unfortunately, however, not many voices are heard about the inestimable damage or erosion of indigenous cultures tied to the plants or crops at the centre of the biopiracy outrage. It is common knowledge that the aggressive bioprospecting practices targeted at indigenous medicinal plants have served as catalysts in the unsustainable harvests of those plants. In addition, such aggressiveness also negatively affects traditional medicinal practices relating to the use of plants. It is usually attractive to embrace an industrial model in which every able-bodied member of the indigenous and local communities willingly lends his or her labour to the harvesting of medicinal plants at the behest of multinational organizations from far-flung places, or their local agents. The promise of a dollar token to a hungry soul provokes a fleeting interest that often overrides considerations of cultural protocol and issues of tradition, spirituality, and sustainability. Furthermore, bioprospecting provides an avenue for all comers to make a pittance from an endeavour hitherto perceived to be exclusive to a caste of people, the traditional healers. This trend does not, however, diminish the truth that medicinal plants are the pivotal theatre and laboratory of indigenous therapeutic culture. Most of the medicinal plants and crops of indigenous usage at the centre of biopiracy have cultural and spiritual significance in and of themselves and in the context of the rituals surrounding their deployment. For instance, Amazonian ayahuasca or yage is a ceremonial and hallucinogenic vine made from the processed bark of Banisteriopsis caapi (a sacred medicinal herb) and other rainforest plants.145 Ayahuasca is regarded as a sacred symbol in the cultures and religions of many

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native peoples of the Amazon. For generations, shamans and others throughout the Amazon are said to have used it to treat sickness, contact spirits, and foresee the future. An American, Loren Miller, obtained a patent based on a strain of ayahuasca and purported to ‘represent a new and unique variety of ayahuasca distinct from other forms’ used by indigenous peoples.146 Although the patent was revoked for want of novelty and possibly reissued under a narrower claim, it has been suggested that a more persuasive basis of revocation should have been a cultural and religious one.147 Such grounds, it is argued, derive from TRIPS article 27.2, the provision for declining to grant a patent on the basis of ordre public.148 The same argument could be made of the controversial patents on neem (Azadirachta indica). Like ayahuasca, neem is a sacred plant. It is known in Sanskrit as sarva-roga nivarini, or ‘curer of all ailments.’149 English-speakers refer to neem as the wonder tree. Neem is associated with religious and cultural symbolism.150 Among its Muslim users, it is called the blessed tree, or shajar-e-mubarak.151 In Indian traditional medicine, neem is ‘at the pinnacle of their pharmacopoeia’152 and pivotal to tremendous economic and cultural activities. Apart from its phenomenal versatility in medicinal and industrial applications, including pesticidal, dental, agricultural, contraceptive, cosmetic, energy, and lumbering uses,153 its religious and cultural symbolism is unassailable. In the 1990s, W.R. Grace, an American company, secured neemrelated patents on a number of inventions in the United States and Europe.154 As happened in the ayahuasca case, a coalition of indigenous peoples and NGOs succeeded in securing the revocation of Grace’s neem-based patents in the United States and other neem-derived patents elsewhere, principally on the basis of lack of novelty. As in the case of ayahuasca, it may be arguable that religious and cultural reasons were equally tenable for the revocation or decline of neem patents under the TRIPS Agreement, pursuant to the ordre public exemption in article 27.2. Section 101 of the U.S. Patent Act requires usefulness of an invention as a condition for the grant of patent. As we have already pointed out, the United States invokes the utility requirement to turn down patent applications on inventions considered immoral or illegal.155 Thus, the utility requirement has a morality component under U.S. patent law.156 Essentially, immorality attaches to inventions that are used to carry out fraud: for example, gambling and currency counterfeiting.157 In Tol-OMatic, Inc. v. Proma Produkt-Und Marketing GmbH, a 1991 U.S. Federal

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Circuit Court decision, it was held that the moral utility requirement excludes inventions ‘injurious to the wellbeing, good policy, or good morals of society.’158 Similarly, the European Union rejects some biotechnology patents that are considered to be contrary to public order and morality.159 The ordre public doctrine recognized under the TRIPS Agreement has its roots in continental Europe.160 Although the doctrine is similar to the concept of public policy or morality under the common law, technically it is not equivalent to the notion of public policy. According to Fecteau, ‘Ordre public encompasses few separate and distinct ideas that are not covered by the Anglo-American doctrine of public policy. First, judges have the discretion to bar enforcement of contracts which they find to offend public order. Second … there are statutory requirements within the ordre public which limit private contracts …’161 Under the ordre public doctrine, ordinarily applicable foreign laws can be barred if they ‘sanction conducts that offend against the forum’s conception of fundamental norms.’162 Under the TRIPS Agreement, if the commercial exploitation of an invention offends the conception of ordre public in a member state, that member can decline to issue a patent on that basis. Interestingly, this provision supports traditional territoriality of patent laws. Some considerations arise with regard to granting patents on medicinal plants that have cultural and religious significance among indigenous peoples. Could the United States, for instance, regard such indigenous cultural sensitivities as offensive to ordre public, or considerations of morality, or against its concept of fundamental norms? If so, can it for that reason only decline to grant patents pursuant to the TRIPS Agreement? To say that such a prospect appears to be a tough call is an understatement.163 On the other hand, countries with majority indigenous populations may have little difficulty relying on the ordre public provision (or its morality connotation) in the TRIPS Agreement to revoke or decline to recognize patents on medicinal plants and crops that have religious and cultural significance.164 For instance, Quebec civil law excludes trade or commercial dealing with sacred objects otherwise called imprescriptibles. Any such object must be actually used in a sacred religious ceremony in order to attract this kind of protection. In Prévost v. Fabrique de la Paroisse de l’Ange-Gardien,165 the trial court annulled the sale of sacred Catholic sculptures to the National Gallery of Canada and the Musée du Québec on application by the Church Council. The Quebec Appeal Court dismissed this decision.166 Similarly, leave to appeal was denied by the

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Supreme Court of Canada. In the indigenous context, this position will be strengthened if indigenous customary law, cultural structures, and protocols are adequately empowered to be constitutive of the fundamental norms.167 In sum, anti-biopiracy campaigns are conducted with emphasis on the financial and material exploitation of local and indigenous peoples via patents. Not much consideration is given to the cultural symbolism associated with most of the medicinal and agricultural crops at the centre of biopiracy. The patent regime of intellectual property does not yet recognize the cultural and religious practices of indigenous and local peoples as grounds for rejection or revocation of patents or patent application, especially in Western countries. In those countries, it may be hard to determine whether such cultural or religious considerations are offensive to the prevailing fundamental norms or ordre public or even morality. The real question is whose ordre public? From all indications, its resolution appears to favour the dominant culture. There has yet to be a patent revocation in the United States on ordre public grounds. Rather, in that country, as in many Western societies, plants are regarded as purely utilitarian assets subject to all forms of exploitation and industrialization. Further, I suspect that the silence of the U.S. Patent and Trademark Office and the courts suggests a tacit endorsement of the notion that associating culture and religion with plants may not be offensive to the majority or constitute a fundamental norm in the United States, hence the patentability of religiously symbolic plants. The contrary is true in many developing countries. Consequently, there is no reason why developing countries with majority indigenous populations could not decline to recognize such patents in their countries on ordre public grounds. In this regard there is a compelling need for them to legally empower indigenous customary regimes, the tenets of which could arguably amount to the fundamental norms prevailing in the respective countries. Examples abound of indigenous medicinal plants or agricultural crops of cultural or religious significance cited in biopiracy discourse.168 Nonetheless, it is important to point out that not all such plants or crops have cultural and religious consequence among indigenous and local communities.169 Beyond Patenting: Folkloric Protection for TKPT It can be argued that since TKPT represents a major aspect of indigenous culture, its protection should not be limited to the patent system

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only. Such a claim requires a brief examination. TKPT is a cultural enterprise involving various artistic and cultural displays, first of all by the traditional healer, the sick, members of the therapeutic community, and the entire society. The healing experience is one in which the healer and the local community indulge in diverse artistic forms such as sacred painting, ideographic signification, poetry, oratorical invocations, incantations, musicotherapy such as songs and hymns, dancing, prayer, recitations, and various ‘multimedia communications.’ Conventionally, all these artistic and knowledge forms fall under ‘folklore,’170 and they are not protected within the patent genre. This explains in part why traditional medicine is also referred to in some quarters as ‘folk medicine.’ The concept of folklore depicts ‘a group-oriented and tradition-based creation of groups or individuals reflecting the expectations of the community as an adequate expression of its cultural and social identity; its standards are transmitted orally, by imitations or by other means.’171 Forms of folklore include songs, dance, poetry, language, literature, music, incantations, games, mythology, rituals, customs, handicrafts, architecture, and several other art forms.172 Folklore is modelled on copyright analogues. Conventionally, folklore is an extension of copyright, and it is often spoken of in sui generis or copyright plus173 terms. However, unlike copyright, folklore is described as ‘an antithesis of a recorded culture.’174 This may not be entirely correct – it depends on what recording connotes. It may be misleading to limit recording to written representation, which satisfies only fixation in a tangible form. Indigenous and traditional artists, including healers, are known to flawlessly recite long songs, poems, histories, and incantations that may span hours and in some cases days before they are completed.175 However, folklore does not fit into copyright for a number of reasons, such as the latter’s emphasis on fixation, originality, individuality, and economic focus of remedy.176 Since various traditional therapeutic experience and practices incorporate folkloric forms, they appear to merit protection under this regime. For instance, the shamanic incantations, complex therapeutic rituals, including poetics, healing performances in song or musicotherapy, sand paintings, and so on, could often take spontaneous turns and not be readily amenable to representation in a tangible form. It is impossible to separate them from the underlying and intangible symbolism, spiritualism, and belief systems that fixation entails. A prayer, when expressed in a written material, could be the subject of a copyright.177 Nonetheless, fixation detracts from the deep

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personal, emotive, and spiritual power of prayer that is fully realized in the context of individual or group specificity, ecstasy, seeming spontaneous outbursts, or the like. Further, there is no strong international regime for the protection of folklore. Understandably, the initiatives in that regard are championed by developing countries and indigenous peoples whose cultural lives are mainly oral. In 1976 several African countries initiated an agreement regarding the protection of folklore among themselves via the Tunis Model Law on Copyright for Developing Countries.178 This Model provides for the enactment of a comprehensive copyright legislation that covers folklore. It refers specifically to the latter and defines it as every literary, artistic, and scientific work created on national territory either by authors presumed to be nationals of such countries or by ethnic communities passed from generation to generation. According to the Model, folklore constitutes one of the basic elements of traditional cultural heritage.179 The Model overrides most of the barriers associated with conventional intellectual property (copyright) in relation to folkloric expressions. For instance, it dispenses with the fixation requirement,180 and would appear to support a perpetual right for folklore, in which case there will be no term limit.181 Another international initiative182 on folklore is the 1982 WIPOUNESCO Model Provisions on National Laws on the Expression of Folklore Against Illicit Exploitation and Other Prejudicial Actions.183 Like the Tunis Model, the WIPO-UNESCO Model recognizes collective ownership and perpetual protection of folklore, and dispenses with the requirement of fixation.184 Attempts at elevating the WIPOUNESCO Model to an international covenant have not yielded results. To date, the United Nations, and indeed most developed countries (as opposed to some of their developing counterparts),185 have yet to adopt it.186 The notion that TKPT and other forms of indigenous knowledge involving plants, including agricultural endeavours, are folkloric in essential respects is not in doubt,187 but there are a number of constraints in advancing that position. First, there is currently no clear international global regime on folklore. Second, even in those countries that have endorsed both the Tunis and the WIPO Models, folklore is limited to the context of artistic expression. Hence, folklore has hardly been extended to a sub-context of indigenous knowledge other than the arts. Third, even the WIPO itself endorses that limitation. According to that organization, ‘Only artistic heritage is covered by the Model Provi-

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sions. This means that among other things traditional beliefs, scientific views (e.g. traditional cosmogony) or mere practical traditions, such as separated from possible traditional artistic forms of their expressions, do not fall within the scope of the proposed definition of expression of folklore.’188 This contrasts with a broader description of protectable indigenous knowledge that includes indigenous creativity in all contexts, including TKPT.189 Lastly, another problem with the extension of folkloric protection to TKPT arises from the reservation on the part of many indigenous peoples about the fragmentation of their heritage. According to Erica-Irene Daes, such division implies the giving of different levels of protection to different levels of heritage,190 thus undermining their holistic essence in the indigenous life world. That is exactly what copyright, patent, trademark, and other forms of intellectual property do. Indigenous peoples regard all products of the human mind and heart as interrelated and flowing from the same source. Daes elaborates that having a song, story, or medicinal knowledge carries with it a certain responsibility. Such responsibility entails showing respect for and maintaining a reciprocal relationship with human beings, animals, plants, and places, especially those connected to the song, story, or medicine. In the indigenous context, heritage is a bundle of relationships rather than a bundle of economic rights.191 In addition to the patent regime’s complicity in undermining the conceptual foundation of TKPT, without question many theoretical issues arise from the intersection of intellectual property and traditional knowledge. The discourse about folklore is an exemplification of the complexity of these issues. Happily, the question of folklore is an ongoing debate in international law. However, only since the 1982 WIPOUNESCO initiative did folklore begin to receive renewed attention. This is via the mandate of the Global Intellectual Property Issues Division (GIPID) of the WIPO. In 1998 the WIPO General Assembly expanded the mandate of GIPID and charged it to address four topical items, including the protections of expression of folklore within a twoyear time frame.192 Through its concluded fact-finding missions, the WIPO is fully apprised of the ubiquitous hold of folklore in indigenous knowledge narrative. The recent shift from the exploratory thrust of the missions to emphasis on addressing conceptual issues in regard to intellectual property by the WIPO193 will enable it to have a better understanding of folklore as the latter regains attention in the WIPO’s agenda.

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Intellectual Property at the Periphery: Geographical Indications Geographical indication of origin is cited as a tool for protecting traditional knowledge.194 The TRIPS Agreement defines geographical indication as ‘[i]ndications which identify a good as originating in the territory of a Member, or region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.’195 In the context of TKPT, geographical indications may not have much relevance. Geographical indication is a sui generis trademark-type right. The latter (trademark) refers to ‘any sign, or any combination of signs, capable of distinguishing the goods and services of one undertaking from those of other undertakings.’196 Both forms of intellectual property (geographical indications and trademark) are market devices directed generally at the promotion of products. While trademark serves a generic marketing purpose, geographical indication conveys additional information that may promote both marketing and cultural objectives. Specifically, geographical indication is a form of certification trademark used to identify products on the basis of their certified quality, reputation, and other effectual characteristics connected to their geographic origin.197 Applied to local knowledge, geographical indication aims at protecting the integrity, goodwill and reputation of local art and knowledge. In addition, indications of origin are based on collective tradition. According to David Downes, ‘[T]hey emphasize the relationship between human cultures and their local land and environment … they can be maintained as long as the collective tradition is maintained.’198 Geographical indications promote the collective nature of cultural products and ensure economic benefits to local peoples. Indications of origin are viewed as being more responsive to indigenous concerns than conventional intellectual property categories such as patents, trademarks and copyrights. Nonetheless, they promote traditional knowledge in a narrow commercial-product context. However, TKPT is a complex experience. Its focus is not on any given product but on therapeutic intervention in its cultural contexts. The pharmaceutical is subsumed in the therapeutic. Hence, the reification and isolation of a therapeutic compound from the therapeutic environment and associated rituals for marketing purposes are not the preoccupation of traditional healing. Because of their focus on product marketing, indications of origin and trademarks have limited application to TKPT.

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Indications of origin are sui generis trademark rights capable of facilitating economic returns for indigenous artworks. For instance, Downes reports that in 2000 artisans of several Native American tribes earn as much as $800 million annually from commercial sales of exquisite works of arts, the designs of which are considered cultural heritage.199 In Canada, aboriginal artists, composers, and authors or creators of tradition-based works take advantage of the relevant provisions of the copyright law and provisions regarding certification marks under the trademark law to protect their creations, which are prized tourist treasures. Indications of origin may enhance the value of local art, craft, or natural biological material for marketing purposes. Indications of origin or certification trademarks appeal to the demands of the marketplace. Often the products at issue ‘derive their values from a combination of environmental and cultural factors, in particular, the traditional and collectively maintained technique for production.’200 For instance, many local peoples capitalize on commercial sales of exquisite works of art whose designs are considered cultural heritage and are in high demand. But the downside is that indications of origin may yield indigenous arts to cultural appropriation and dilution. More often than not, corporate industrial production concerns and their superior marketing power tend to appropriate traditional artworks while undermining traditional methods of production. In Milpurrurru v. Indofurn Pty. Ltd., a non-native businessman commissioned a third party outside Australia to mass-produce rugs with culturally symbolic aboriginal designs. The rugs were then marketed far and wide in a manner that purported to have the approval of relevant Australian aboriginal peoples. Such an industrial model equally undermines the need to use natural products, not to mention some cultural and ritualistic symbols of native art. It is essential that products benefiting from geographical indications are, to serve desired objectives, within the exclusive control and subject to the ownership of indigenous peoples. Perhaps most important, indications of origin can be beneficial to indigenous objectives if they (the indications of origin) operate on the basis of a consensus between often conflicting indigenous interests. Among indigenous peoples, Farley identifies two interests. The first are those who fear that commercial exploitation of living culture could precipitate a disruption of people’s religious beliefs and the dissolution of their priceless cultural life – the traditional group. The second are those not opposed to exploiting and developing

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the imagery of their ancestors in a way that may yield commercial success – the realist group.201 The point about geographical indication is that apart from patents, there are other intellectual property rights discourses in the context of traditional knowledge. However, they do not have persuasive relevance to TKPT. Geographic indication shows that although intellectual property may not adequately fit traditional knowledge, the fitness question should not be exaggerated. As is evident from above, geographical indication may serve the interests of sections of indigenous communities, such as artists. Yet geographic indication, like other intellectual property options, is saddled with conceptual and ideological hurdles, in this case, between the ‘traditional’ and ‘realist’ opinions in indigenous circles. Patenting TKPT: Some Reflections On Self-Determination TKPT is at the heart of indigenous knowledge. Perhaps few, if any, aspects of expressions of indigenous knowledge are absent in TKPT. The latter is a component of indigenous environmental philosophy incorporating various uses of plants and animals, mediating and interpreting the relationships between those ecological indicators and humanity. In these regards, TKPT’s connection to biodiversity conservation and ecological ethics is clear. Indigenous religious beliefs, complex therapeutic rituals centring on supernatural phenomena, and sociocultural and even political relationships and more are all implicated in TKPT. It is inconceivable to evaluate traditional therapeutic experience outside indigenous cultural contexts. Health and culture have a mutually reinforcing and inseparable affinity. It is in this context that intellectual property regimes, particularly patent’s tendency to compromise indigenous therapeutic culture, should be understood. That culture is significant to indigenous or traditional peoples. To undermine it, or to substitute it with an epistemological alternative, strikes at the root of the indigenous quest for self-determination. It may be argued that patent’s empowerment of an industrial and scientific therapeutic narrative does not, in principle, forbid traditional therapeutic activities from using patented plants, but this may not be so simple. Patent signifies a legal empowerment of one narrative over another. The industrial approach of patent makes it attractive, notwith-

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standing its parochial focus. Thus, indigenous knowledge is compelled to look to that narrative for validation. Patents on traditional plants have been known to erode some traditional medicinal culture originally based on the patented plant. For instance, kwao kruae, a popular Thai herbal preparation, has been used in Thai traditional medicine for several years. In fact, it sustained a number of local organizations and industries that thrived on the kwao kruae medicinal preparation. However, a patent on kwao kruae resulted in the stifling of all other local activities associated with the remedy.202 Indigenous and local peoples have tied the protection of their knowledge and culture to self-determination.203 The latter transcends the conventional theme of political participation. Within the narrow rubric of political participation, self-determination does not hold the same attraction to different indigenous peoples.204 Generally, self-determination attracts global attention in relation to the indigenous peoples of the enclave territories more than it does to their counterparts elsewhere. Nonetheless, self-determination is now explored in the context of the sociocultural and economic life of all indigenous and colonized peoples.205 Thus, cultural self-determination is a rallying point for the cultural survival of the world’s indigenous peoples. TKPT invokes virtually all aspects of indigenous cultural identity. A number of international indigenous and local peoples’ declarations as well as core international instruments have endorsed indigenous peoples’ right to cultural life, a component of their quest for selfdetermination. TKPT is the hub of the indigenous cultural life, their world view and their identity that are protected under those instruments. I have referred to the relevant declarations and instruments at the beginning of this chapter and elsewhere in chapters 2 and 3. It suffices to limit our examples to the reiteration of the provisions of a handful of the instruments at this point. The Universal Declaration of Human Rights speaks of everyone’s right to freely participate in the cultural life of his/her community, to enjoy the arts, and to share in its scientific advancement.206 The International Covenant on Civil and Political Rights guarantees the right to enjoyment of culture, profession, and practice of religion.207 ILO Convention No. 169 endorses a health care policy based on indigenous healing practices and cultural conditions.208 Under the UN Draft Declaration on the Rights of Indigenous Peoples, the guarantee of indigenous self-determination encompasses sociocultural, religious, health, land, environmental, and economic activities and so forth.209 As we saw in chapter 3, article 12 of the declara-

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tion poignantly guarantees to indigenous peoples their rights to the restoration, practice, and revival of their cultural traditions.210 The indigenous cultural manifestations listed under that provision include artifacts, designs, ceremonies, technologies, visual and performing arts, literature, religious, and spiritual endeavours. These are further amplified by the right to traditional medicine and health practices, including medicinal plants, animals and minerals.211 Lastly, article 8(j), of the CBD provides for respect, preservation, and maintenance of the knowledge and innovation of indigenous peoples embodying traditional lifestyles. These are indicative of the essential trend in the international law on indigenous peoples. Traditional medicine embodies the fullest complement of indigenous cultural expressions protected under international law. The patent regime would seem to work at cross purpose with the tenets of what I have identified as indigenous renaissance. On Medical Pluralism In addition to its unwholesome effect on indigenous self-determination, the undercutting of TKPT through the patent regime hampers the promise of medical pluralism. As noted, medical pluralism is the co-existence of more than one health system in a society.212 A health system depicts ‘[a] patterned interrelated body of values and deliberate practices governed by a single paradigm of meaning, identification, prevention and treatment of sickness.’213 A broader notion of medical pluralism refers to epistemic therapeutic narratives of two world views: Western and non-Western. In that regard, medical pluralism may be understood simply as more than one epistemic approach to health. I have identified two epistemic models in very broad terms as the biomedical and the psychosocial. The WHO traditional medicine policy reviewed in chapter 3 aims at the integration of traditional medicine with the allopathic system. The WHO insists on validating traditional medical practices by Western scientific parameters. Nonetheless, what is clear in the WHO’s approach is that traditional medicine represents an alternative epistemic approach to health, a point the WHO is yet to realize in practical terms. Where different medical systems co-exist, they either compete with or complement one another. Humanity benefits where the complementary exchange is enhanced214 and loses when one system stifles the other through the reification of one epistemic genre. For instance, in the traditional medical context, phenomena such as placebo and sugges-

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tion are well-developed therapeutic conventions endorsed also by conventional medical science. Further, it is common knowledge that the psychosocial and psychosomatic thrust of traditional therapy explains its relative success in psychiatric and other medical conditions.215 The patronage of traditional medicine across the globe shows humankind’s desire for cures to ill health irrespective of their sources. After all, diseases and human afflictions are universal phenomena. In addition, the increasing visibility of traditional medicine is an indication that neither Western medicine nor any medical system, for that matter, has a monopoly of solutions to human afflictions. However, popular and favourable views of traditional medicine have been greeted with skepticism; in fact, they are directly challenged by the renowned public health law scholar David P. Fidler.216 According to Fidler, the future of traditional medicine may not be bright in the extant globalization era. The attempt to regulate traditional medicine and integrate it into mainstream health care is ‘a move to Westernize traditional medical practices by moving them onto firmer scientific and legal basis.’217 Thus, what is happening is a one-way integration or penetration. Traditional medicine is being integrated to a point of being absorbed. For Fidler, much of the talk about melding traditional medicine and Western medicine aims at enhancing the penetration of Western medical hegemony into developing societies.218 Fidler is of the view that ‘the large-scale use of traditional medicine in developing countries only serves to emphasize the extent of the failure of national and international health policy to improve conditions along Western models.’219 Not only does Fidler’s position undermine the success of the melding in China and in many Asian countries of the two systems, but also appears to subscribe to the common error of the Western narrative, which virtually perceives alternative cultural practices in strictly utilitarian terms. It fails to recognize that traditional medicine is a multicultural phenomenon that embraces virtually all aspects of the indigenous life world. Not surprisingly, Fidler predicts the demise of traditional medicine. According to him, the movement to regulate traditional medicine and the plan to use it for the better delivery of Western public health care puts stress on traditional medicine. This state of affairs, he argues, precipitates general cultural erosion that will eventually render the concept of traditional medicine less useful and unattractive in the context of health in developing countries and, of course, in indigenous communities.220 Fidler’s bold, albeit self-confessed, sweeping remarks, however, vindicate my view that the reification of Western science by

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the patent regime undermines traditional medicine and the idea of medical pluralism in preference to ‘allopathic hegemony.’ Indeed, his comments affirm that there are many obstacles to the survival of traditional medicine. Intellectual property is but one of many schemes with potential negative impact. The tendency toward allopathic hegemony does not detract from it but rather undermines the truth that every culture brings an alternative narrative to health care. Each has so much to learn from the other. To settle for one is to limit humanity’s potential to significantly mitigate the burden of ill health. Thus, the intellectual property rights regime, especially patents, by reifying one epistemic realm does not foster the much-desired pluralism in the medical sector. Thus far, the reservations over the ability of conventional intellectual property rights to protect indigenous knowledge appear to be well founded. The exposition of the sociocultural context and epistemic framework of traditional medicinal practices bears this out. Clearly, conventional intellectual property rights are not able to satisfactorily accommodate epistemic therapeutic narratives outside biomedicine. This is primarily because mainstream intellectual property rights, especially patents, are not designed to recognize knowledge forms outside the Western scientific paradigm. This fundamental shortcoming of Western intellectual property rights accounts for what has been described as the ‘crisis of legitimacy in the intellectual property system.’221 The concluding chapter explores the feasibility of shifting the intellectual property discourse in a direction that will tap into a knowledge protection regime that is sensitive to epistemic pluralism. That way, it is possible that intellectual property can accommodate indigenous knowledge forms, on their own merit, without subjecting them to unwarranted reductionism or forced epistemological assimilation.

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6 Toward a Cross-cultural Dialogue on Intellectual Property Rights

The crucial issue is … whether we can devise regulatory forms that will allow indigenous people to pursue their own economic interest in the use of their cultures in the ways that are consistent with their aspirations for the preservation and evolution of their cultures. – Peter Drahos, ‘Indigenous Knowledge and the Duties of Intellectual Property Owners’ What is needed by the world is not a uniform intellectual property rights, but a diverse one which respects the rights of traditional cultures. – Mohammed Khalil, ‘Biodiversity and Conservation of Medicinal Plants’

I have underscored the reservations about the ability of conventional intellectual property rights, especially patents, to foster indigenous interests and aspirations. In relation to traditional knowledge of plantbased therapy (TKPT), intellectual property rights, especially the patent regime, is not a reliable mechanism to facilitate the attainment of a number of expectations. A few of those expectations include the preservation of the cultural integrity of indigenous knowledge and by extension the indigenous quest for self-determination, the notion of medical pluralism, and not the least of all biodiversity conservation. By way of conclusion, this chapter explores how some of these objectives can best be attained. It does not endorse the outright discarding of Western intellectual property models or their sui generis constructs; rather, here I identify with a cross-cultural approach in the search for a sui generis scheme for local knowledge protection. Such a scheme should be based on the provision of legal cover for traditional knowledge in a manner

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that draws from customary protocols or traditional regimes for the protection of knowledge. An effective international protective regime for indigenous knowledge, which does not compromise its epistemic foundation and cultural integrity, should not ignore how knowledge has been protected in indigenous communities. For too long we have proceeded as if mainstream intellectual property is the only mechanism for knowledge protection. However, the crisis of legitimacy in the intellectual property system demands a template shift to a cross-cultural approach to knowledge protection. My aim is to point to a direction. The detail of how to get to a destination is secondary to knowing the destination. I am concerned here with drawing attention to the template shift in intellectual property discourse, examining and articulating how that shift is proceeding. The cross-cultural approach is without doubt in need of details, the exploration of which is outside the scope of this book. Those details will continue to evolve as the shift gains momentum. Indeed, the exploration of the cross-cultural project, including its practical details, is one of the pivotal items in the intellectual property discourse and in the quest for the protection of indigenous knowledge and peoples in the twenty-first century. We are right at the dawn of what promises to be an exciting conversation in the intellectual property arena. Appraising the Discussion In his preliminary study on intellectual property rights in the context of the Convention on Biological Diversity (CBD) objectives, the executive secretary of the CBD observed ‘that there has been little empirical study of the impact of specific IPRs on specific bodies of traditional knowledge.’1 The views canvassed in this book do not derive from an empirical exercise in the social science sense. Nonetheless, I have drawn attention to the complexity of issues implicated in a specific intellectual property arena – patents in relation to traditional knowledge of plantbased therapies (TKPT) or traditional medicine. I have evaluated the potential harm posed by conventional intellectual property in relation to traditional knowledge forms. In contrast to the expectation of indigenous and local communities, intellectual property rights can facilitate cultural erosion and epistemological assimilation of less empowered peoples and custodians of informal knowledge. In evaluating the potential harms of intellectual property, I have surveyed the sociocultural context and epistemic framework of TKPT in relation to the patent

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regime of conventional intellectual property in a manner akin to a case study. International legal developments relating to indigenous peoples and local communities place a high premium on their knowledge. There has been a remarkable shift in those developments from the usual political emphasis on the self-determination of indigenous peoples. Under the current trend, self-determination is broadly construed to include all aspects of indigenous cultural identity, socio-economic and developmental aspirations.2 Essentially, those aspirations are driven by indigenous knowledge. Thus, ‘knowledge’ is the current frontier of the indigenous question in international law. This shift in emphasis from the traditional political theme of selfdetermination defuses the divisive tendency that the concept attracts within indigenous ranks. Whereas political self-determination was a priority to the indigenous peoples of the enclave territories, it is not perceived as such in relation to other indigenous peoples in Africa, Asia, and elsewhere. The linking of self-determination with indigenous knowledge provides a platform for the convergence of the aspiration of the world’s indigenous and local peoples embodied in the protection of their traditional knowledge. Relevant instruments have deliberately eschewed the controversy over the definition of indigenous peoples by adding concepts such as ‘local communities.’ Incorporating several categories of peoples who derive a substantial part of their livelihood directly from the natural world, that concept is designed to avoid endless debate over which people qualify as indigenous.3 Therefore, the world’s marginalized peoples could now forge a common interest and understanding based on a shared world view and knowledge. Such awareness contrasts with peculiar internal political situations that hitherto emphasized their differences. Indigenous or local peoples have forged a connection between the protection of their knowledge and their rights to self-determination and cultural survival. TKPT or traditional medicine embodies indigenous cultural expressions and world views in their complexities. Intellectual property, specifically patent, is inadequate to provide the required preservation and protection mechanism for indigenous cultural identity embodied in TKPT. Like other categories of mainstream intellectual property rights, the conceptual foundation of patent does not recognize indigenous norms and values. For indigenous peoples to take advantage of the existing patent regime, especially as it applies to TKPT, is to allow themselves to be coerced to subscribe to a discredited logic of develop-

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ment.4 Simply stated, one of the consequences of the prevailing logic of development is the assimilation of indigenous and local peoples’ knowledge and value systems into Western scientific terms. Assimilation has negative multiplier effects. Those effects include epistemological reductionism, the obliteration of indigenous identity, and economic disempowerment. They strike at the core of indigenous aspirations. Ironically, one of the high points of international law on indigenous peoples is the rejection of the earlier policy of assimilation in preference to indigenous self-determination and preservation of indigenous cultural identity. Indigenous peoples’ claims to rights over their knowledge and their insistence that such knowledge forms be preserved are legitimate. The need to protect indigenous knowledge is recognized under international law. Yet the question is how to preserve, protect, and reward indigenous knowledge without compromising indigenous cultural identity and traditional values. As the primary mechanism for the allocation of rights over knowledge and its products, intellectual property rights are central to this discourse. There is consensus in the relevant circles that intellectual property rights, specifically patents, do not adequately protect indigenous knowledge and interests. This book’s emphasis on the divergence between the patent regime of intellectual property rights and TKPT hammers this point home. The malleable and dynamic character of conventional intellectual property, despite the concept’s inadequacies, can be invoked to accommodate the peculiar nature of indigenous knowledge; hence, the need for a sui generis patent regime in the form, for instance, of ‘community patent,’ or something like PBRs, based on modified elements of mainstream patent. However, attempts to create a sui generis regime concentrate on reconstructing only some procedural, practical, and peripheral issues, such as lowering the threshold for patent eligibility, duration of rights, legal status of indigenous or communal applicants, or redefinition of prior arts. There is no attempt to tackle the conceptual conflict inherent in the application of conventional intellectual property incidents to indigenous knowledge forms. No consideration is given to the epistemic schism between indigenous and Western ways of knowing, which is reinforced by intellectual property rights, especially the patent regime. In other words, alternative or sui generis proposals, based on the elements of the extant intellectual property system, especially patents, are still deficient for the purpose of indigenous knowledge protection. To be legitimized by the patent regime, indigenous knowledge must

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submit to the touchstone of Western scientific validation. The concept of science is a fundamental point of tension between indigenous and Western ways of knowing. I subscribe to the view that science is a pluricultural phenomenon, a way of knowing that is not value neutral. The recognition of this plurality in the ways of knowing is very critical for indigenous peoples. Alternative or sui generis intellectual property rights designed to accommodate indigenous knowledge need not imitate conventional regimes.5 It is important to bear this in mind because such regimes are forged from epistemic foundations and other priorities that are different from indigenous ones. However, it is not in all cases that Western intellectual property does not serve indigenous interests. For instance, an imaginative deployment of indications of origin could enhance the commercialization of indigenous artworks, even though this would not satisfy all indigenous stakeholders. Similarly, the proposal that patents deriving from indigenous knowledge must acknowledge or disclose the role of indigenous peoples is a way of recognizing indigenous contributions to innovation.6 Nonetheless, it does not address the epistemic complicity of intellectual property in the appropriation of local knowledge. Mere disclosure and acknowledgement are not cures for the inadequacies of conventional intellectual property rights in regard to indigenous knowledge. There is a need to look inwards, within indigenous customary practices and other national regimes, in the search for creative intellectual property schemes that align with the values of indigenous and local cultures. Indigenous Knowledge: Economic Reward versus Cultural Integrity The conception of traditional medicine in this book emphasizes the use of plants. Biological resources, especially plant biodiversity, are the mainstay of TKPT. Therefore the emerging CBD-inspired regimes on access to genetic or biological resources, or perhaps more directly the ongoing debates on the implementation of article 8(j), are important in our search for a creative protection scheme suitable to indigenous cultural integrity. Since its inception, the CBD through its Conferences of Parties (COP) meetings has provided the platform for discourse on the question of reward for and protection of indigenous knowledge. This is conducted at different levels, but most important through the debate over the implementation of article 8(j).7 That article requires parties to the CBD to, among other things, respect, preserve, and maintain knowledge, innovations, and practices of indigenous and local communities

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embodying traditional biodiversity conservation, use, and sustainable lifestyles. While the debate continues on article 8(j) and related provisions, a number of national governments and regional authorities have taken policy and legislative steps to regulate access to biological resources in accordance with article 15. The latter enjoins parties to create conditions to facilitate access to genetic resources. Access Regimes Article 15 is concerned with conditions for access to and transfer of genetic resources, which it conceives as a South to North swap. The emphasis of article 15 is on the economic entitlement of indigenous peoples for their custodial relationship with and preservation role in relation to genetic or biological resources. Although indigenous knowledge of these resources is often the catalyst for industrial and Western scientific applications, the direct focus of article 15 is not indigenous knowledge. First and foremost, article 15 is concerned with how useful genetic materials in indigenous communities can be transferred to Western industrial establishments. In addition, the use of the genetic materials envisaged under that article is in terms of their ‘scientific’ deployment on Western terms, as distinct from indigenous knowledge experiences. Lastly, article 15’s primary interest is the commercialization of genetic resources and the sharing of the benefits arising therefrom. For instance, article 15(7) requires that legislative, administrative, and policy measures relating to access to genetic resources be geared toward ‘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.’ In many cases, genetic resources are provided by national governments through their indigenous peoples, or directly by indigenous peoples themselves, as the case may be. In fact, apart from the South to North transfer of genetic resources, article 15 proposes a North to South transfer of ‘scientific’ or technological experience relating to the use of the resources. Article 15(6) states that ‘[e]ach 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.’8 Clearly, it is not surprising that a number of genetic resources transfer regimes in the pre-CBD and post-CBD eras conceive of indigenous interests essentially in commercial terms. However, indigenous and

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local peoples’ dealings with biological resources transcend commercial considerations. They border on cultural survival, identity, and selfdetermination. Essentially, the intellectual property rights recognized under genetic transfer regimes are the conventional ones. Strikingly, under some of the schemes, indigenous peoples are not considered capable of holding those rights.9 At best, indigenous peoples are symbolic partakers in the accruing royalty in a manner cosmetically designed to satisfy equity. National access regimes on biological (including genetic) resources pursuant to the provisions of the CBD, especially article 15, are on the increase. Similarly, there are a number of regional initiatives with the same objectives.10 Since 1999 the rank of nations initiating access regimes has continued to swell. Amid these CBD-friendly or compliant regimes are other contractual options. Most of the latter are directed to specific projects or research programs between international research organizations, local collaborators, and indigenous and local communities. I reviewed this trend in chapter 3.11 The focus of most of these regimes is to regulate access to biological resources, although the laws and relevant contracts may also contain provisions that relate to the use of indigenous knowledge.12 The Organization of African Unity (OAU) (now the African Union) draft of an African Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological Resources13 is somehow an attempt to realize the objectives of articles 15 and 8(j). Notwithstanding this aim, which is clearly stated in the draft’s sixth preambular paragraph,14 this multipurpose draft is, in substance, concerned with access, benefit sharing, conservation, and the involvement of local communities in the biodiversity enterprise. In the case of the Andean Community, two regimes, namely Decision 391 on Common Regime on Access to Genetic Resources, and Decision 486 on Common Regime on Industrial Property, evince separate and self-explanatory objectives. However, because the central motivation for most of the regimes is essentially economic compensation for genetic resources qua resources, the preservation of the integrity of indigenous knowledge appears not to enjoy priority. Furthermore, only conventional intellectual property rights, especially patents, are recognized in many of these regimes. For instance, in the famed Merck/ INBio model, as well as under the National Cancer Institute (NCI) scheme, the International Cooperative Biodiversity Group (ICBG) program, and the Shaman pharmaceutical’s initiative and similar corpo-

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rate biodiversity exploration models, indigenous and local peoples never held the intellectual property rights (patent) ensuing from the programs. Absent Western scientific or industrial mediation, indigenous knowledge is considered incapable of generating intellectual property rights in most of these initiatives. A best-case scenario is where the indigenous and local peoples are allocated a predetermined and often very low percentage of patent royalty in contractual circumstances in which they are clearly disadvantaged parties. It is hardly surprising that the charge of biopiracy continues to assail quite a number of corporations and institutions purporting to comply with article 15 of the CBD. Such corporations and institutions spend generous public relations dollars laundering their images in a manner that suggests that they take indigenous interests into consideration. Nonetheless, the lingering biopiracy charges stem from the apparent tokenism and surface scratching that these efforts actually are. In its criticism of the once famous Merck/INBio scheme, the Rural Advancement Foundation International (RAFI), now the Action Group on Erosion, Technology and Concentration (ETC Group), decries the inequitable nature of the agreement. RAFI notes that Costa Rica’s rainforests are estimated to hold 5–7% of the world’s remaining biodiversity. If the Merck/INBio deal were widely replicated, the South’s biodiversity could all be auctioned off for the paltry sum of about $10 million per annum. Merck’s sales in 1991 were $8.6 billion, while Costa Rica’s GNP that year [1991] was $5.2 billion. Merck’s research budget in 1991 was roughly $1 billion. Indeed, Merck has three drugs with sales in excess of $1 billion each. Given that pharmaceutical companies invest an average of $231 million on research for each new drug, the discovery charge for one single new drug arising from the deal is barely loose change. For Merck, the Costa Rica contract bought exceedingly cheap labour and access to unidentified biological treasures (and superb public relations).15

Article 8(j): Beyond Access to Cultural Integrity Notwithstanding the shortcomings of these regimes, the CBD is perceived as a significant instrument for the protection of indigenous interests. Article 8(j) lends credence to this view. It implores parties to ‘[r]espect, preserve, maintain knowledge and innovations and practices of indigenous and local communities embodying traditional lifestyles

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relevant for the conservation and sustainable use of biological diversity.’16 This is a loaded provision, which has been subjected to scrutiny in an emerging jurisprudence on conservation and indigenous knowledge. My interest is in its linkage to traditional medicine. The CBD does not define or itemize the body of indigenous knowledge and practices captured under article 8(j). Nonetheless, the critical determinant for the protection of indigenous knowledge forms under article 8(j) is their relevance to conservation.17 Clearly excluded are aspects of indigenous knowledge and practices that are not ecologically sound. This is an indirect acknowledgement that not all the practices of indigenous and local communities are conservation-friendly, after all.18 However, our discussion of the nature of TKPT locates it within indigenous conservation-friendly practices. The use of plants for medicinal purposes represents indigenous conservation ethic at its best. For instance, indigenous dealings with plants, and indeed biological resources, especially for medicinal purposes, reflect respect for ecological sanctity as a feature of the indigenous world view. For indigenous peoples, medicinal plants and all biological resources constitute mankind’s partners in a complex web of relationships. Hence, plants are treated with utmost reverence. In fact, in many indigenous cultures, plants are sacred spiritual entities.19 Understandably, medicinal plants are deliberately protected in many indigenous cultures.20 Without question, TKPT is a conservation-friendly practice. Therefore, it fits within the provision of article 8(j) of the CBD as a ‘practice embodying traditional life style relevant to conservation.’ Article 8(j) emphasizes not only the preservation of the integrity of indigenous knowledge, but it also guarantees the involvement of knowledge holders in the exploitation of their knowledge. In some ways article 8(j) seems antithetical to article 15. The latter reifies Western science and seeks the equitable sharing of its benefits, including transfer of technology arising from the use of genetic materials from generich indigenous communities. On the other hand, article 8(j) focuses on the integrity of the indigenous knowledge form in the exploitation and conservation of biological resources. Further, it considers indigenous knowledge as transferable, supposedly outside indigenous cultures. On the whole, article 8(j) speaks to the cultural integrity of indigenous knowledge. Nonetheless, instead of being antithetical to each other, articles 8(j) and 15 jointly construed reflect mutuality of exchange and balance in the traffic of knowledge. Both provisions reflect the CBD’s recognition of the interpenetration and fluidity of knowledge forms.

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In keeping with the CBD’s framework model, article 8(j) is an openended provision. It is subject to national legislation. Every member party to the convention has a prerogative to provide the practical details for giving life to article 8(j). As a matter of fact, the meetings of the Conference of Parties (COP) of the CBD have continued to solicit case studies and opinions from members and other interested bodies on how to implement article 8(j). Thus, how to realize the affirmations of article 8(j) and other provisions on indigenous knowledge and cultural identity remains a challenge to both national and international legal regimes. There are several ways of recognizing traditional knowledge and associated indigenous cultures as envisaged under article 8(j). Intellectual property is only one of them. For instance, in article 16(5), the CBD acknowledges that patents and other intellectual property rights may have an influence on the implementation of the Convention. The issue really boils down to another aspect of article 16(5), which requires that such intellectual property rights be supportive of, and not run counter to, the objectives of the Convention. However, because the objectives of the Convention are often contradictory, it should not be taken for granted which objective the Convention seeks to prioritize. One of the criticisms of the CBD is that as a convention for the conservation of biological resources, it is also one that facilitates their industrialization and commodification. This is evident in the Convention’s objectives as set out in article 1. That article makes reference to conservation and sustainable use of biodiversity, alongside the sharing of benefits arising from genetic resources. Similarly, we have noted the tensions in the provisions of articles 8(j) and 15 of the Convention. The tensions correspond to the question of the cultural integrity of local knowledge in relation to its exploitation and commodification through regimes for access to genetic resources. Also, while the patent regime endorsed by the CBD may promote access to genetic resources, it has the potential to undermine issues of equity in the allocation of the benefits accruing from indigenous knowledge. Intellectual property regimes, or their sui generis forms, do not necessarily have to be in the likeness of the mainstream versions. To insist otherwise may compromise indigenous interests in relation to cultural integrity. The preservation of the cultural integrity of local knowledge is the raison d’être for article 8(j). There is a need to look inward in the direction of indigenous customary regimes, which have been neglected by most national governments in preference for colonial-imposed legal

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traditions such as conventional intellectual property. The importance of this approach is that such regimes are based on indigenous values, world views, and epistemic inclinations. Indeed, in virtually all cases, ways of knowing correlate to the ways of protection, transmission, legitimation, and evaluation of knowledge.21 In many indigenous cultures, the market economy and Western scientific and industrial approaches to the exploitation of natural resources do not fully reflect the nature of indigenous peoples’ dealings with the natural environment. Indigenous and local peoples are interested in the integrity of their environment and their spiritual and social relationships with other forces of nature in accordance with their belief systems. Yet they are not oblivious to the economic imperative. The difference is that economic considerations are not the overarching necessity in the indigenous world, and more so in the context of their heritage. As Daes observed, ‘for indigenous peoples heritage is a bundle of relationships rather than a bundle of economic rights.’22 Indigenous Knowledge: Legal Empowerment from Within Because of its complexity and the fact that it intersects with other concerns, the preservation of the cultural integrity of indigenous knowledge is being negotiated in different arenas. Some of the discourses and negotiations are conducted with varying emphasis within the mandate and interests of relevant United Nations and intergovernmental agencies23 and participating NGOs. Based on their mandates and interests, these organizations usually limit their focus to selected aspects of indigenous knowledge. The imperative for collaboration among the relevant intergovernmental agencies and NGOs is obvious. At present, two important fora, namely, the CBD and the World Intellectual Property Organization (WIPO), represent the most visible venues in which discussions about national and global policies on indigenous knowledge are conducted. Collaboration between these two bodies encourages and facilitates a holistic and coordinated approach to this obviously complex phenomenon. Recent and ongoing developments in the two fora show that they are inclined toward an inward-looking approach in the quest for a mechanism of protection for indigenous knowledge and interests. Before I discuss the developments, an overview of the inward approach is pertinent. The inward approach I espouse here aims at the protection of indig-

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enous knowledge forms, and by extension indigenous cultural integrity, in the context of the broader quest for self-determination by indigenous and local peoples. It should be premised on the empowerment of traditional knowledge holders at the very local levels. Therefore, it ought to be an initiative of the indigenous and local communities with the active support of their national governments. The primary thrust of that modality will be the provision of legal cover to forms of traditional or customary protocols for the protection of knowledge systems prevailing within the indigenous communities. Among other things, indigenous and local communities and other legitimate holders of knowledge must be recognized as legal entities. The social units and traditional concepts that have the likeness of legal personality in many indigenous cultures include stools (royalty) among many African societies, families, kindred, bands, clans, quarters, villages, age-grades, particular cults, and, lately, the concept of the Town Union.24 Brazil and the Philippines have shown the lead in this direction by recognizing the legal personality of indigenous social units and their entitlement under statute to intellectual property rights over their knowledge forms.25 Preferably, recognition need not be at the discretion of national governments. Rather, it serves indigenous interests and integrity if recognition flows, as of right, from the customary regime prevailing in the relevant communities first and is then co-opted into the national legal regime. In virtually all indigenous cultures, there are customary rights for the protection of knowledge. For instance, there are well-developed secrecy regimes in many indigenous cultures for the preservation of certain forms of knowledge held by appropriate customary custodians and practitioners. Such secrecy regimes are forms of indigenous intellectual property rights. The functions of those regimes are often rooted and justified in the religious beliefs and cultural systems, which do not prioritize the economic imperative. Ironically, the secrecy regimes recognized under the prevailing and official intellectual property laws in most developing countries with indigenous and local communities is trade secret. As the name suggests, the condition precedent to a trade secret is its economic value. For information to retain its worth as a trade secret, it must be capable of independent economic value and subject to a deliberate, positive, and reasonable effort directed at the maintenance of its secrecy.26 While mainstream intellectual property rights require that few possess the secret, often the secrecy regime in the traditional context is with reference to a family, clan, or generational group, or what has been described as a ‘small public,’ which may be too

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broad for the purpose of a trade secret under mainstream intellectual property regime. Nonetheless, there is no convincing reason why mainstream intellectual property’s version of trade secret should be preferred to indigenous ones. Indigenous alternatives to intellectual property are not lacking. What is missing is their empowerment, for instance, through adequate legal cover. Extending legal cover to indigenous customary protocols for knowledge protection is envisaged as a national responsibility with potential global ramifications. WIPO has suggested to the Inter-Governmental Committee on Genetic Resources, Traditional Knowledge, and Folklore (IGC-GRTKF)27 that the latter has the option to focus on systems of protection at national levels. Supposedly, this would include those systems based on indigenous norms and protocols. According to WIPO, such a focus is with a view to framing more general principles in the form of an international framework for action.28 Thus, legal cover for indigenous customary protocols can set the stage for a global modality for the protection of indigenous knowledge on the basis of indigenous conceptions. As a national initiative, the legal cover project needs to be tailored toward recognizing the prevailing customary practices in individual countries. It is true that the globalization of intellectual property rights imposes a minimum intellectual property rights standard for universal application. Consequently, the symbol of that global regime, the TRIPS Agreement,29 may have curtailed the power of national governments over intellectual property rights protection and regulation. However, it has not completely dispensed with the national character of intellectual property rights. The global era of IPRs is part of the phenomenon of globalization in which economic and social forces and human, natural, and material resources are influenced by centralized regulatory regimes.30 TRIPS marks a transition from the traditional national character of IPRs to an overtly international regulated subject. But globalization, even in the intellectual property arena, is not a synonym for uniformization that is often emphasized in globalization analyses. A balanced view of globalization is one that characterizes it as a conflicted phenomenon, the subject of conceptual contradictions.31 Although globalization aids homogenization in its diverse ramifications, the converse side of the globalization coin is that it also facilitates the flourishing of diversity, especially in cultural expression and the resistance of indigenous and/ or minority cultures to forces of domination and/or homogenization. The twentieth and twenty-first centuries epitomize an era of both

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globalization and indigenous renaissance. These phenomena have given rise to minority cultures’ increased consciousness in cultural membership.32 The indigenous renaissance and its impact in boosting forms of cultural emancipation constitutes a feature of globalization. The quest for the protection of indigenous peoples and their knowledge forms that has pushed the intellectual property debate into a cross-cultural conversation is a consequence of indigenous resistance to the creeping forces of globalization and cultural appropriation.33 According to Boaventura de Sousa Santos, ‘culture, if anything, is a struggle against uniformity.’34 TRIPS is symbolic of globalization in the intellectual property context. Yet, attempts to focus on customary regimes and protocols for knowledge protection in indigenous and local communities, as a response to the crisis of legitimacy in the intellectual property system, is also an incident of globalization. These trends, which I examine in the next few pages, constitute preliminary attempts at a cross-cultural shift in the intellectual property discourse. Under the TRIPS Agreement, states still have some leverage in determining patentable subject matters. For example, we have noted in the last chapter that indigenous cultural sensitivities have been linked to the ordre public exception under the TRIPS Agreement. If indigenous values are sufficiently legally empowered, they can form the basis for making a determination over what conducts are offensive to ordre public or to ‘a forum’s concepts of fundamental norms’35 for the purpose of revoking a patent or declining a new application therefor. National governments, especially in developing countries, are well within their rights to decline the recognition of patents over culturally sensitive subject matters. This position can be made more tenable if the customary regimes and protocols sanctioning such sentiments in indigenous and local communities are adequately protected under national laws, or, better still, if they are part of the national law. Unfortunately, political realities are often insensitive to indigenous concerns. There is an obvious need for national governments to take a proactive stand in providing legal cover for indigenous norms. National governments are supposed to be champions of cultural diversity and advocates of the authenticity of national cultures,36 especially in this era of globalization. National governments, through the various other layers of authority in the polity, are closer to indigenous peoples. For instance, with regard to TKPT, national governments are in a better position to understand its cultural components and may be less persuaded by the pure economic arguments based on market efficiency. Such arguments

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are often in conflict with indigenous world views. Again, national governments are supposedly in a better position to appreciate that indigenous cultural sensitivities represent irreparable externalities that ought not to be undermined. In fact, because such sensitivities are linked to the indigenous being and identity, they should constitute a matter of crucial national interest. In some indigenous societies, knowledge protection regimes – for example, secrecy protocols – whether they amount to intellectual property rights or not, are perceived as safeguarding norms considered fundamental to the indigenous being and identity. Interference with or appropriation of such rights amounts to assault on a group’s right to self-determination within the larger society. In countries such as Canada, some form of internal self-determination exists. Indigenous peoples have been granted a certain level of selfgovernment. Nonetheless, the Westphalian state is not dead yet. National governments are still the most appropriate parties to international treaties. Thus, despite the different layers of governments existing in a polity, national governments are instrumental in multilateral negotiations. The aim of empowering indigenous and local communities would be to create an enabling environment for the eventual evolution of an international regime that recognizes the cultural integrity of indigenous knowledge. A global intellectual property rights regime is a necessity in the twenty-first century. It has been rightly argued that unless national governments provide legal cover for local knowledge, it can be least expected that external interests will champion that cause.37 The ongoing brouhaha over the status of traditional knowledge with specific reference to article 27.3(b) of the TRIPS Agreement could well have been avoided if national governments, especially the United States, Canada, and other European countries with indigenous populations recognized indigenous objections over the patenting of life forms as a component of those countries’ larger national interests. The CBD and WIPO: Embracing the Cross-cultural Dialogue The ongoing developments at the CBD and the WIPO indicate the willingness of the two bodies to give consideration to prevailing customary practices and protocols in indigenous and local communities for the protection of their knowledge. The issue, however, remains how far these policy debates are determined to go in that direction. This is especially so in view of alternative and competing considerations, such as working within the mainstream intellectual property regime, the

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idea of indigenous knowledge databases, and the uncritical reading of the globalization phenomenon. The CBD program that has broached the inward or cross-cultural approach to indigenous and local knowledge protection regimes has been at the instance of its COP meetings. Specifically, the initiative has been from the Ad Hoc Open-Ended InterSessional Working Group on Article 8(j) and Related Provisions of the Convention on Biological Diversity (the Working Group). A similar inclination on the part of the WIPO can be gleaned from its Global Intellectual Property Issues (GIPI) program. I elaborate on the two initiatives that I broached earlier. The COP and the Ad Hoc Working Group on Article 8(j) Almost from its inception, the COP of the CBD has been mindful of the fact that article 8(j) is at the heart of the Convention.38 Since that article is akin to a guideline, it became imperative for the COP to commence deliberations on how to give effect to it. In 1994 the second COP opened discussions over the implementation of article 8(j).39 Since then, article 8(j) has remained a permanent subject of subsequent COPs. Currently, discussions over the implementation of article 8(j) fall on the Working Group established by decision IV/9 of the COP.40 The additional mandate of the Working Group, regarding ‘related provisions,’ is inevitable because article 8(j) is at the centre of the Convention, and virtually all other provisions are related to it. But perhaps more important for the present purpose are the provisions on intellectual property rights and access to genetic resources. The Working Group has remained consistent in its commitment to encourage inquiry into customary regimes for knowledge protection in indigenous and local communities. Because of the complexity of its mandate, the Working Group adopts a multifaceted approach to the discussions relating to the implementation of article 8(j).41 Again, the complexity of the issues involved compels the Working Group to opt for a phased implementation of its mandate. The Group outlines its mandate in two phases. The first comprises seven key elements designed to activate and mobilize all the stakeholders implicated in article 8(j) and to generate appropriate guidelines and legal assistance in support of implementation of that article. The key elements include participatory mechanisms for indigenous and local peoples, guidelines to enhance equitable sharing of benefits, monitoring elements regarding the impact of developmental projects on cultural sites, monitoring legal elements with regard to intellectual

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property rights that have impact on the protection of local knowledge, and providing legal assistance/guidelines for national regimes for the implementation of article 8(j). The second phase is concerned with long-term objectives. Among others, it focuses on setting up a number of guidelines and standards relating to strengthening the use of traditional knowledge, the establishment of national incentive schemes to encourage indigenous conservation ethics, generating guidelines for repatriation of cultural property, and recognition of indigenous customary codes and ethical conduct as a guide to the development of model ethical codes for the conduct of research, including issues relating to exchange and dissemination of information.42 From its activities so far, the Working Group has set a tone in the direction of an inward approach to the protection of traditional knowledge for the purpose of article 8(j). Uppermost on the mandate of the Working Group is ‘to provide advice as a priority on the application and development of legal and other appropriate forms of protection for the knowledge, innovations and practices of indigenous and local communities …’43 In this regard, the Group gives consideration to subnational and customary protocols for the protection of knowledge as it enlists the participation of indigenous and local communities in the search for ways to enhance and protect their knowledge in its cultural context.44 Consequently, it has co-opted the newly established Permanent Forum on Indigenous Issues into its activities of the Working Group. In 2003 it submitted a recommendation to the Working Group on anti-biopiracy and other measures to ensure respect for indigenous cultural and intellectual property. This inward approach forms the thrust of the Working Group’s activities. In the meantime, the COP has adopted the Working Group’s outline of the composite report on the status and trends regarding knowledge, innovations, and practices of indigenous and local communities relevant to the conservation and sustainable use of biodiversity.45 The composite report bespeaks an inward-looking research project with a focus on the status of traditional knowledge in indigenous and local communities. The objective is to explore how the knowledge forms could be empowered in accordance with article 8(j). Its first phase is concerned with the state of retention of traditional biodiversity-related knowledge,46 specifically the status of traditional knowledge relating to food, medicine, conservation, and sustainable use of flora and fauna and those relating to major ecosystem categories.47 In adopting the

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outline for the composite report, the COP recognized ‘that indigenous peoples and local communities have their own systems for the protection and transmission of traditional knowledge as part of their customary law.’48 Among other things, the research will aim at giving effect to the need to respect, preserve, and maintain traditional knowledge, innovation practices, and the capacity of indigenous and local peoples to protect traditional knowledge.49 The ongoing projects and discussion relating to article 8(j) indicate a realization of the value of pre-existing customary mechanisms at local levels for the preservation of the integrity of indigenous knowledge. It appears that the Working Group on article 8(j) and COP are conscious of the fact that a realistic and broader global mechanism will be one that does not compromise the cultural sensitivities of indigenous knowledge. The starting point for this project is the internal or customary mechanisms that exist within the indigenous and local communities. The WIPO’s GIPI Program and the Inter-governmental Committee The WIPO’s Global Intellectual Property Issues program is another initiative that is shaping the direction of the discourse on the protection of indigenous knowledge in line with the objectives of article 8(j). As discussed, developments at the COP via the Working Group on article 8(j) appear to strike a harmonious cord with the trends in the WIPO. Of the several forums in which the debates about the protection of the knowledge of indigenous and local communities are currently explored, the CBD and WIPO have taken the moral high ground. Both bodies have adopted an approach that seeks both to understand indigenous knowledge forms from indigenous perspectives with a view to according them appropriate recognition on the basis of indigenous customary norms. To this end, Rosemary Coombe affirms that the WIPO and the CBD have realized that indigenous customary law ought to be taken into account when considering the use of traditional knowledge. She also notes that the two organizations now understand that indigenous customary law principles are sources of legitimate juridical insight for consideration of alternative forms and norms of property.50 Accordingly, the central thrust of this trend is that it places indigenous peoples in the position where they ‘will continue to be major voices in articulating an alternative vision for intellectual property rights.’51 Indeed, we are at the birth of what has been tagged ‘a cross-cultural conversation in

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the intellectual property arena.’52 It still remains to be seen how far that conversation goes. In November 1997 the WIPO set up the Global Intellectual Property Issues Division53 for the implementation of the GIPI program. That is the WIPO’s strategic program of action designed to respond to the intellectual property issues posed, among other things, by the subjects of traditional and cultural knowledge. Among the global intellectual property issues identified as sub-programs of the GIPI program in the 1998–99 biennium were (i) protection of traditional knowledge, innovations and creativity; (ii) biotechnology and biodiversity; (iii) protection of folklore; and (iv) intellectual property and development.54 The WIPO’s first initiative under the GIPI program was to investigate ‘the needs and expectations of groups which until now have little or incomplete exposure to the IP system.’55 Consequently, between 1998 and 1999 the WIPO conducted global fact-finding missions that explored the intellectual property needs and expectations of traditional knowledge holders. The expected objective of the findings in the report, published in April 2001, is to assist the WIPO in defining and guiding future activities on the protection of traditional knowledge.56 In other words, the WIPO hopes that the outcome of the project will assist in providing the conceptual framework for the formulation of related policies on which its developmental cooperation and other activities can be based. One of the highlights of the WIPO report is the issue of indigenous customary laws and protocols for the protection of traditional knowledge. In the course of the project, indigenous peoples almost overwhelmed the WIPO’s missionaries with accounts and descriptions of various customary regimes for protecting their knowledge. The sentiments were high among sections of indigenous participants in the missions on the need to protect traditional cultural expressions through the application of customary intellectual property rights in indigenous terms.57 The WIPO’s experience in that regard could symbolically be seen as resonating with indigenous demand that the protection of indigenous knowledge ‘should begin with communities and … [in terms of] how they protected their cultural expressions and knowledge … [and then] use the same customary tools or tools adopted from them.’58 From its interactions, the WIPO broadly identified three different informal protocols relating to the preservation of traditional knowledge. The first relates to trade regimes over traditional designs, songs,

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and dances among some North American Natives. For instance, elders of the Canadian Bloodtribe (or the Blackfoot Indians) exemplified this with a narration of rules and obligations relating to the creation of tipi designs, customary protocols governing the reproduction, adaptation, and licensing and other forms of transfer of the design.59 The second relates to ritual regimes over traditional medicinal knowledge exemplified by the South Asian experience. In South Asia, traditional medicine falls into two categories: codified (e.g., the Ayurvedic, siddha, and unani tibbi systems), and non-codified systems.60 Informal intellectual property regimes are in the form of magic, ritual, and spiritual beliefs associated with traditional medicine. Foremost in that category is the secrecy regime. According to the WIPO, that regime rests on the innovator’s ability to prevent the public disclosure of his or her innovation.61 In addition, the rituals or magical components of traditional medicine operate as protective devices even when knowledge becomes available for public access. In that context, surrounding myths may discourage the free exploitation of knowledge. As social constructs, rituals perpetuate myths such as the imperative for a healer’s personal involvement in the healing process. Rituals could also involve objects that are exclusively reserved to an innovator or a complex procedure that is hard to imitate except on initiation. In the WIPO’s opinion, the healers as well as the communities are grounded in cultural practices and belief systems that imbue the rituals with a sacred meaning, while protecting the concept of innovation.62 Authoritative healers are in a position to summon social sanctions against impostors in an effective manner to check appropriation or misattribution of knowledge. The third broad regime category relates to customary laws on traditional images and artistic works. This is exemplified in the South Pacific experience, especially that of the Australian aboriginal peoples. The Milpurrurru v. Indofurn Pty. Ltd. case and others where the court acknowledged the existence of a customary law regime governing the use and protection of artistic works attests to the relevance of indigenous customary law on traditional images and artistic works. In Milpurrurru,63 the court found that under aboriginal customary law, artistic works are owned collectively, even though some sections of the aboriginal community have exclusive rights over the production of specific imageries. However, the right to depict a design does not necessarily permit the designer to authorize the reproduction of the design. The WIPO missions received first-hand accounts of the prevalence of intellectual property or knowledge protection regimes among indigenous and local communities. The missions also analogized those re-

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gimes to formal systems. Quite unexpectedly, the WIPO’s articulation of needs and expectations, pursuant to its fact-finding missions, concludes with a call for the ‘study of customary laws and protocols in local and traditional communities, including conclusions relevant for the formal IP system.’64 This is a formal endorsement of the crosscultural approach to intellectual property in the context of indigenous knowledge. But all may not be well with the WIPO’s traditional knowledge initiatives, especially the fact-finding missions, at least in terms of the latter’s conceptual framework. Brian Noble’s critique of the missions’ report on the Blackfoot tipi design transfers mentioned above faults the conceptual model of the WIPO missions.65 According to Noble, participation was limited to preselected ‘locally knowledgeable’ persons or ‘TK experts’ apprised of the terms and objectives of the Missions,66 a situation that raises questions about neutrality. Second, the missions focused on ‘selecting and enrolling only those characteristics of ... customary transactions which accord with [Western] intellectual property exchange.’67 The resultant tendency was to subordinate indigenous customary norms to Western ones, rather than articulating the former ‘as parallel authorized system of rights, practices and obligations’68 in order to move toward the ‘recognition of customary laws as of right.’69 Consequently, Noble observes that the WIPO’s analysis of the Blackfoot tipi design exchange undermined the ‘complexity and plasticity of customary Blackfoot tipi transfer practices.’70 It is, however, encouraging that the WIPO’s objective now is to move from the exploratory nature of the fact-finding missions to addressing practical and conceptual issues71 arising from its indigenous knowledge initiatives. In this regard, Noble’s and other valid criticisms of the scheme merit serious consideration in subsequent WIPO initiatives. Such initiatives involve studies on customary law and regulatory systems that apply to the protection of knowledge, innovations and creativity in local and traditional settings with a view to eliciting conclusions that are relevant for the formal intellectual property system.72 In this and other regards, the WIPO has rightly acknowledged that ‘[t]raditional knowledge holders are subject to both customary and modern legal systems, since their knowledge constitutes subject matter to which both may apply. The interfaces, similarities and differences between customary and modern legal systems require understanding and management … [of] the relationship between modern and customary understandings of IPRs and [the] TK subject.’73 The entire WIPO/GIPI mandate under its Main Programs is a cen-

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sored or limited one. GIPI programs are not to be construed as norm setting. According to Michael Halewood, American support for continued WIPO inquiry was premised on the understanding that it is not intended to fit into a process that would result in the generation of a treaty or recommendations.74 However, what is important here is that indigenous peoples and national governments would find the WIPO’s work beneficial, especially if the conceptual flaws are fixed. Now that indigenous peoples have been recognized as a significant constituency in the cross-cultural discussion about intellectual property, their ability to benefit from and contribute to the debate has been acknowledged as never before. The GIPI program will be helpful in redesigning national laws in a manner that will incorporate indigenous customary intellectual property versions or protocols. Despite American censorship, the WIPO could influence other related conventions, including even the WTO, with which it has signed a memorandum of understanding. Under that agreement, the WIPO provides technical support to the TRIPS Council.75 Remarkably, the WIPO has forged strong collaboration with the CBD, especially through the Working Group on Article 8(j). Apart from the general recognition of the WIPO as a crucial partner, the CBD’s COP has referred to the former’s works on virtually every decision relating to article 8(j), while stressing the need for a synergy between the Working Group and WIPO.76 With a memorandum of understanding77 to show for it, now the level of cooperation between the two bodies is evident in their inward-looking projects. Therefore, although the WIPO may be constrained in its work on indigenous knowledge, especially as a result of external pressure such as U.S. opposition to a new treaty, the influence of the organization’s thinking on other intergovernmental agencies, indigenous and local peoples, as well as national governments may not be underestimated. Indeed, the WIPO is in a good position to influence the evolution of norms along the direction of its current thinking toward an alternative vision of intellectual property. The IGC-GRTKF represents another point of cooperation between the WIPO and CBD. The Committee was set up at the Twenty-Sixth Session of the General Assembly of the WIPO Member States in 2000, before the release of the final Report of the Fact-Finding Missions.78 The Committee provides a forum for member states to hold discussions on three agenda items, namely (a) access to genetic resources and benefit sharing, (ii) protection of traditional knowledge, innovations and creativity, and (iii) the protection of expressions of folklore.79 At its first session, the IGC set to complement WIPO and CBD initia-

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tives as well as those of the FAO’s Commission on Genetic Resources for Food and Agriculture (CGRFA) in regard to the protection of indigenous knowledge. More important, the COP enlisted the IGC in the project of assessing the effectiveness of prevailing intellectual regimes in the protection of indigenous knowledge.80 The WIPO has now consolidated all the global intellectual property issues from the two previous phases of the program into a single framework.81 This has yielded a comprehensive program dedicated to the promotion of intellectual property concepts, strategies, and issues. More efforts in this regard will concentrate in the area of traditional knowledge and folklore within the framework of the newly created IGC.82 As expected, the IGC has tapped into the WIPO and CBD’s inwardlooking approach to understanding customary intellectual property regimes in traditional and local communities. It has conducted surveys on existing forms of intellectual property protection in regard to their nature and adequacy and to national experiences with legal protection of folklore.83 The major objective of this exercise seems to be the reappraisal of the Model Provisions, particularly to identify their deficiency in accounting for some local knowledge forms. The outcome of this project will assist in the ongoing effort to review the Model Provisions. For some time now, the Model Provisions have been perceived as inadequate with regard to aspects of indigenous knowledge forms, even in countries that have voluntarily adopted them. Consequently, the WIPO and the developing countries have realized that the Model Provisions need to be reviewed in order to accommodate the new forms of commercial exploitation of traditional knowledge that have taken place since 1982 when the Model Provisions were introduced. The 1997 UNESCO/WIPO World Forum on the Protection of Folklore held in Phuket, Thailand, adopted a plan of action for the revision of the Model Provisions. Accordingly, the WIPO has since organized four regional consultations on the protection of expressions of folklore. Issues relating to the documentation of traditional knowledge have continued to feature at the IGC deliberations. Subjects such as the generation of databases of contractual practices and clauses regarding access and benefit sharing,84 inventory of traditional knowledge documentation (such as periodicals),85 online databases of traditional knowledge and elements of a sui generis86 system for the protection of traditional knowledge forms continue to be explored. The tendency to discuss traditional knowledge protection with reference to documentation and databases highlights the dilemma facing indigenous peoples and the

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challenges posed by the incidents of our current information society. For some segments of indigenous peoples, the documentation project facilitates the translocation of indigenous knowledge outside its cultural contexts. It does not enhance the preservation of the cultural integrity of such knowledge. For others on the realist plane, documentation is an imperative if indigenous peoples are to be participants in the information society. The IGC has since prepared a comprehensive report for the WIPO General Assembly, covering, among others things, proposals on folklore, databases, and registries for traditional knowledge, existing intellectual property protection for traditional knowledge, an intellectual property toolkit for traditional knowledge documentation, and elements of sui generis protection for traditional knowledge. A glance at the 2003 report of the IGC-GRTKF indicates that the committee virtually has a parallel agenda to the Working Group on Article 8(j). Through its agenda and continuing deliberations, the IGC will have to work in conjunction with the CBD toward reconciling the tensions identified in relation to the traditional knowledge databases. The developments I have explored under the foregoing subsection underscore a significant template shift in the search for an appropriate mechanism for the protection of indigenous knowledge. These processes demonstrate some willingness to move the discourse on knowledge protection away from the fixed paradigm of mainstream intellectual property rights. On the whole, they mark perhaps the most genuine attempt so far to address the crisis of legitimacy in the intellectual property system. Ways of knowing have a correlation to ways of protecting, legitimizing, and evaluating knowledge. For instance, the suitability of the patent regime to Western scientific innovations is not in question. Therefore, it makes sense that the search for a protection scheme for indigenous knowledge must be extended beyond conventional intellectual property regime. Clearly, this is because the latter is not able to validate or legitimize the epistemological process in which local knowledge is generated and deployed. Knowledge Protection outside the Regime of Conventional Intellectual Property Rights The knotty subject of how to protect and preserve the knowledge of indigenous and local peoples, which started precisely twenty years ago,87 has coalesced in the ongoing programs under WIPO and CBD

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jurisdiction. The underlying arguments have been conflated into a search for an appropriate sui generis model that fits the peculiarity of indigenous knowledge without compromising its cultural content and context. In accordance with CBD objectives, a sui generis protection regime for local knowledge must meet the needs of conservation by empowering indigenous knowledge holders without compromising their cultural identity.88 In the last chapter, I noted the inadequacies of the sui generis elements that have been advocated under the general intellectual property regime, with specific reference to patents. Nonetheless, it is true that such elements as indications of origin may serve some, albeit limited, purposes in terms of protecting certain indigenous knowledge forms.89 At this stage, an obvious point that requires reiteration is the way the sui generis idea is conceptualized. Article 27 of the TRIPS Agreement, which provides for a patent or an ‘effective sui generis’ protection, or a combination of both in relation to plant varieties, did not define the term ‘sui generis.’ There is little or no reliable jurisprudence or drafting history to shed light on the meaning of the term ‘effective sui generis systems’ as used under the TRIPS Agreement.90 The connection of the term to the CBD is explained in part by article 8(j), which provides for the protection of traditional knowledge. Intellectual property, being a primary mechanism for the protection of knowledge, can, however, serve the objective of article 8(j) and other relevant articles of the CBD. These will include article 16(5), which specifically sanctions intellectual property and other provisions that contemplate other mechanisms for the protection of local knowledge in general. Since mainstream intellectual property rights do not adequately protect indigenous knowledge forms, the sui generis concept represents an attempt at manipulating the existing regimes or the creation of new categories of rights. Generally, the sui generis notion is conceptualized in two principal ways. First, it is perceived as a legal system for the protection of knowledge. Strictly, however, such a system does not, and need not, fit into mainstream intellectual property; it derives its framework or basic elements therefrom. Michael Halewood provides an elaboration of this notion in the following passage, where he also offers a definition of sui generis. According to him, ‘Sui generis intellectual property protection, [and] “intellectual property-style protection” are treated as synonymous here. The phrase is occasionally shortened to “sui generis protection,” or “sui generis law.” In each instance the law is meant to denote a legal system of protection of knowledge that shares some characteris-

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tics with intellectual property law but which is different in unique ways in order to be able to protect the new subject-matters of indigenous and local peoples’ ecological knowledge.’91 It may be incorrect to limit the sui generis notion to the protection of new subject matters of indigenous knowledge. Such forms as indications of origin, protection of integrated circuit designs, copyrights on software, plant breeders’ rights, business method patents, and other modern generations of intellectual property protections are sui generis regimes that are not exclusively limited to ‘new-subject matters’ of indigenous and local peoples’ knowledge. Similar to Halewood, Dan Leskien and Michael Flitner see the sui generis system as additional IPRs that confer on holders legally enforceable rights. The scope of the rights is to exclude others from certain protected acts, or to obtain remuneration in respect of permitted uses of protected knowledge.92 Perhaps in the context of the TRIPS Agreement, the notion of sui generis rights being imitations of or additional intellectual property rights may be more persuasive than the coverage of traditional knowledge under the CBD. This is so at least because of the Agreement’s status as a principal intellectual property instrument. On the contrary, article 8(j) of the CBD creates a wide leverage for parties to devise regimes for the protection of indigenous or local knowledge forms. Therefore, creative devices for knowledge protection need not necessarily be mainstream intellectual property rights or their likeness. Arguments for new intellectual property rights or intellectual property–style constructs outside the conventional regime fall within this first category of sui generis. The second notion of sui generis contemplates an independent knowledge protection regime specifically focusing on traditional knowledge. It may not necessarily be based on existing or mainstream intellectual property regimes; nor does it have to be ‘legally’ recognized, where legality is referenced to the norms of the dominant Western or formal legal systems as opposed to indigenous customary norms or protocols. Writing in reference to the Blackfoot tipi design transfer, Noble notes that since the complexity and plasticity of such transfers transcends ‘IPness,’ ‘unique localized approaches to transcultural protection and use arrangements can be achieved – without IP law per se.’93 Yet as a device for the protection of knowledge, such options or protocols have some analogy to intellectual property. Because this alternative form of intellectual property protection is based on indigenous or alternative cultural practices and protocols, therein lies its uniqueness. Daes refers to this as ‘indigenous cultural and intellectual property.’94 It is a product of

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the inward looking approach or a ‘cross-cultural conversation’ for the protection of knowledge. The importance of sui generis options based on mainstream intellectual property rights (i.e., the first category above) may not be foreclosed. My view is that more efforts should be made to design a distinctive sui generis option, specifically for the protection of traditional knowledge, with less emphasis on its attachment to the conventional intellectual property system. Such an approach will benefit from the results of case studies and investigations into the customary regimes and protocols for the protection of knowledge that exist among various indigenous and local communities. It will signify a determination to ‘take customary transactions seriously,’ beyond the empty rhetoric designed to massage the indigenous ego. Panama has taken the bold initiative to enact a sui generis regime that is rooted in its indigenous cultural protocols. Article 15 of Law No. 20 provides that ‘[t]he rights of use and commercialization of the art, crafts and other cultural expressions based on the tradition of the indigenous community must be governed by the regulation of each indigenous and local community ...’95 Interestingly, despite the criticisms trailing the once famous Merck/INBio contract, Costa Rica’s Biodiversity Law of 1998 contains similar provisions.96 Even though the ultimate objective of a sui generis system could be to generate a scheme that will be internationally relevant, the inquiry must proceed from the local level. The following observation captures the importance of this inward approach: ‘In practice, a “top-down” or pre-emptive approach to defining sui generis protection at an international level is less likely to succeed if it is shaped without reference to the experience gained from operational national systems that provide practical models for functioning TK [traditional knowledge] protection whether through sui generis protection or the application of existing IP systems to TK subject matter.’97 Integrating local or customary protocols into different national systems of protection will serve the objective of isolating general principles which will form the basis of an international sui generis framework.98 Such a ‘national system’ must be premised on prevailing customary norms, and many such norms are not operational or empowered in many societies. Hence, efforts must be intensified to make them operational by incorporating them into national laws. In this regard, the WIPO and CBD practice of commissioning relevant case studies is a step in the right direction. An imaginative sui generis model tailored to the protection of tradi-

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tional knowledge will not compromise indigenous values and cultural integrity because it would be a product of that system. It is one most likely to cover all manifestations and expressions of traditional knowledge forms in their full essence. Mainstream intellectual properties, or sui generis systems deriving therefrom, have a tendency to fragment traditional knowledge.99 For instance, to fully protect the therapeutic practice of the traditional healer, its different forms may be pigeonholed into different intellectual property regimes. For indigenous peoples, traditional knowledge is a means of cultural identification and the essence of their life world. It has been rightly noted that ‘as a means of cultural identification the protection of traditional knowledge ceases to be simply a matter of economics or exclusive rights … It acquires human rights dimension for it intertwines with the issues of cultural identification and dignity of traditional communities,’100 not to mention self-determination. For indigenous and local communities, their knowledge is a holistic experience, a conservation ethic in which the reality of their survival is premised. The preservation and integrity of their knowledge is a matter of survival. At their best, mainstream intellectual property regimes offer options for the protection of indigenous knowledge in fragmented forms. Such options undermine the underlying issues of cultural integrity and epistemic framework of traditional heritage. It is, however, interesting that the CBD/WIPO renewed initiative to protect traditional knowledge includes folklore. Traditional medicine embraces all aspects of the practices that fall within the understanding of folklore. Unfortunately, the WIPO Model Provisions unduly limit the discourse and conceptions about folklore to artistic creations. As the review of the Model Provisions gets under way, it is hoped that this matter will be revisited. The thinking is rife in WIPO and CBD circles, and regarding the general international law on indigenous peoples, that intellectual property in the context of indigenous knowledge is more than a utilitarian construct for commercial indulgence. For instance, the WIPO’s fact-finding missions under the GIPI program draw a relationship between intellectual property and the social, cultural, and economic development of indigenous and local communities. Thus, the linkage between indigenous knowledge, intellectual property, and human rights has been made, although it seems to have been coldly received by Western countries.101 A sui generis arrangement that underscores the cultural context of traditional knowledge is desirable. It fits into the social-planning concept of intellectual property that conceives the essence of intellectual

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property as one of advancing a balanced cultural vision.102 Such a regime reclaims the cultural dimensions of intellectual property rights, which, as we saw in the last chapter, are compromised under the prevalent discredited logic of development. Mainstream intellectual property rights, and most sui generis categories based on them, perceive traditional knowledge merely as the sum of its individual parts. As has been rightly observed, ‘traditional knowledge is more than that – it is the consistent and coherent combination of those elements into an indivisible piece of culture.’103 In its cultural context, traditional knowledge, as exemplified by traditional medicine, is a conservation or ecological ethic. It is an embodiment of a people’s culture, their history, their philosophy, and their religion and belief systems, their identity and world view. Questions about the protection of indigenous knowledge must be carefully appraised. If the objective is to serve the interests of indigenous and local communities economically and culturally, they (indigenous and local communities) ought to be active participants in the process. Adequate regard must be given to schemes that have their basis in indigenous epistemes. Indigenous and local peoples must be wary of devices which, even though attractive and well intended, are capable of eroding their cultural identities. If we are to avoid inadvertently leading indigenous peoples onto the dangerous path of epistemic and cultural assimilation, we need a system that accommodates, promotes, and rewards different ways of knowing. In that regard, it is imperative to shun the parochial scientific high ground and to explore pre-existing systems that recognize and respond to the holistic nature of traditional knowledge. We must fashion operational systems that understand the cultural context of local knowledge, systems that give complete regard to the integrity of such knowledge forms. Sui generis systems for the protection of traditional knowledge need not necessarily imitate mainstream intellectual property regimes. Schemes based on indigenous customary ethos should be explored, while modes of their integration into the international system, beginning with national experiences, also deserve attention. As we have seen, the mainstream intellectual property system is an industrial model that sanctions the Western epistemic genre. My exploration of TKPT shows how such a parochial and ethnocentric tradition hampers the acknowledged potentials of medical pluralism. The Western scientific and industrial system, supported by conventional intellectual property, is not flexible enough to accommodate alternative accounts

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of knowledge. At least, that is the conclusion from the exploration of the patent regime. Traditional therapeutic systems constitute alternative conceptions of health and healing. Protective schemes that do not reify one knowledge system over another enable humanity to maximize the immense strength and benefits that are inherent in its diversity. Such a scheme best guarantees the attainment of medical pluralism on a global scale and ensures that traditional medicine does not die, as it is predicted in some quarters.104 That is part of the promise of a cross-cultural approach to the intellectual property discourse. The Cross-cultural Approach as a Framework The idea of an inward-looking approach or a cross-cultural discourse about intellectual property is a framework concept. It is proposed as a direction in the search for a culturally oriented sui generis model. It requires perhaps a more focused attempt to flesh out its details and address potential conflicts. For instance, I have barely broached the challenge posed to the cross-cultural project by globalization.105 Other issues that warrant serious consideration include questions about arm’slength jurisdiction and resistance to potential institutionalization of new forms of authoritarianism that the cross-cultural project may entail. Also, conflict of law issues in their diverse forms, for example, between a conventional intellectual property regime and a new rights regime on traditional knowledge, or between existing national laws on intellectual property and different customary knowledge protection protocols, would need to be anticipated and addressed. That exercise, as already noted, is outside the objective and scope of this book. For now, it needs to be stressed only that the crystallization of international efforts for the protection of indigenous knowledge has been narrowed down to the amorphous concept of a sui generis system. That result may seem insignificant, given that the process of arriving at that understanding took twenty years.106 Nonetheless, it is not a trivial achievement. Rather, it shows the extremely complex nature of the issues involved in the philosophy of the debate. Similarly, despite the interrelated nature of the issues involved and the plethora of indigenous, national, regional, international, and intergovernmental institutions concerned about them, the coalescing of efforts at the WIPO and CBD levels is a positive development.107 Notwithstanding the conceptual flaw in the orientation of the factfinding missions, the WIPO and the CBD have taken coordinated and authoritative initiatives that set the tone for the discourse about indig-

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enous knowledge, even as these initiatives feed into other fora that have stakes in the subject. Specific mention is made of the WTO, particularly on account of its review of article 27.3(b) of the TRIPS Agreement. That Agreement is symbolic of the trend toward the emergence of one global economy and the shift from the territorial character of the intellectual property rights regime. This shift represents one of the challenges to a sui generis system conceptualized pursuant to article 8(j) of the CBD. The 2001 Doha Declaration of the 4th WTO Ministerial Meeting also endorsed a coordinated approach to appraising the convergent issues at stake in this enterprise.108 For instance, in sanctioning the lingering review of article 27.3(b) of the TRIPS Agreement, the Doha Declaration, in article 9, requires the consideration of other implementation issues associated with the Agreement. According to the Declaration, these include the examination of the relationship between the TRIPS Agreement and the CBD, the protection of traditional knowledge and folklore, and other relevant new developments. The current commitment to a cross-cultural approach to intellectual property, as explored in different fora, should not be perceived as antithetical to the globalization of intellectual property regulation. Against the background of the strides made by indigenous peoples in the evolving global order and contemporary international law, the cross-cultural project is an incidence of globalization rather than its antithesis. A subject that will affect or constrain the cross-cultural discourse relates to the resource ownership regimes existing between indigenous and local peoples and their national governments. In many countries this is a matter of constitutional law. Often there is no unity of purpose or sufficient trust between indigenous and local communities and the power-wielding elites in many of the countries. Nonetheless, the protection of indigenous knowledge would be better enhanced in an atmosphere characterized by unity of purpose between national governments and indigenous and local communities. Because this is not always the case, some indigenous and local peoples lack the trust to work with their national governments. They are inclined to rely on international efforts to protect their interests. This may serve the limited purpose of building global awareness, but it can only yield results over a very long period. Essentially, such an approach may not go far if national governments are uncooperative. Despite the pros and cons of this approach, the most important thing is that a viable sui generis regime, whether instigated from within or without, should be drawn from indigenous customary norms or protocols. The elements of a sui generis system for the protection of traditional

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knowledge as projected by the WIPO109 reveals the enormity of the issues involved. They raise conceptual questions in relation to the existing or conventional intellectual property system and the national or international scope of the application of a sui generis construct. Other areas of concern include practical questions of its applicability to all forms of traditional knowledge. In conceiving a sui generis form, the items that demand detailing include its general legal framework, elements that address questions about policy objectives, subject matter, criteria for protection, right owners, content of rights, modes of rights acquisition, administration, enforcement of rights110 and concerns about the scope of the public domain. This list is by no means exhaustive. For these considerations to make any meaningful strides toward advancing the cross-cultural conversation necessary for their determination, they would have to be examined closely in the context of applicable indigenous customary regimes. A number of these issues may not pose serious concerns in relation to the sui generis models based on the conventional intellectual property system. For example, the conventional model makes ad hoc concessions that purport to accommodate the exigencies of local knowledge such as recognizing the legal personality of indigenous claimants. But under distinct or independent sui generis systems, these concerns pose greater challenges. Undoubtedly we are at the beginning of a crucial stage following the twenty-year effort that has been made so far to protect indigenous knowledge. Since it took the international community twenty years to arrive at this stage, predictably it will take much more to sort out the operational details to make a sui generis regime functional. In the interim, national governments are in a position to move the agenda forward by taking proactive steps to advance them through the provision of legal cover for relevant customary protocols. Pending the crystallization of ongoing efforts, the protection of indigenous knowledge cannot be left in abeyance. Despite their inadequacies, sui generis systems based on existing elements of mainstream intellectual property and other contractual options remain relevant at least on ad hoc bases. Their relevance may well be a stopgap measure pending the emergence from the cross-cultural conversations of concrete results aimed at institutionalizing comprehensive functional regimes of protection for local knowledge. Clearly, the conversation that this subject has invoked in international law and policy has barely begun.

Notes

1. General Introduction and Overview 1 See Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Perspective and International Legal Analysis,’ (1999) 12 Harvard Human Rights Journal 57 at 58. 2 See Peter Fitzpatrick and Eve Darian-Smith, eds., Laws of the Postcolonial (Ann Arbor: University of Michigan Press, 1999) at 1. 3 Those territories where there was no settler withdrawal such as the United States, Canada, Australia, New Zealand, and most of South America. 4 For instance, in Worcester v. Georgia, 31 U.S. (6 Pet) 515 (1832), the U.S. Supreme Court held that the laws of the state of Georgia were excluded from operating on Cherokee territories pursuant to the Cherokee Nation’s treaty with the United States. This decision foreshadowed subsequent trends in judicial decisions in Canada, Australia, and elsewhere. In 1982 Canada concluded a major constitutional reform and installed a new bill of rights regime under the Charter of Rights and Freedoms. The Charter (enshrined in Sch. B of the Constitution Act, 1982, c. 11) sanctioned indigenous rights in a constitutional seal. In 1997 the Supreme Court of Canada in a landmark decision, Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, affirmed aboriginal land tenure as sui generis tenure protected under section 35 of the Constitution Act, 1982. On 1 April 1999, Canada set up a semi-autonomous government for the almost exclusively First Nations Territory of Nunavut (meaning ‘this is our land’). The Nisga’a Treaty of 1998 provides a more direct and acceptable form of aboriginal self-rule in Canada (British Columbia) than the Nunavut initiative. See generally, James Y. Henderson, Aboriginal Tenure in the Constitution of Canada (Ontario: Carswell, 2000). In 1992 in the famous Australian case Mabo v.

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Notes to pages 1–5 Queensland (1992) 175 C.L.R. 1, the court rejected the application of the common law doctrine of terra nullius by the Crown to preclude aboriginal rights over land. The revival of the 1840 colonial Treaty of Waitangi through the 1975 Treaty of Waitangi Tribunal in New Zealand provides the platform for the indigenous Maori to reclaim their identity in modern New Zealand. At the regional level, the Organization of American States has finalized the draft of a regional instrument for the protection of indigenous peoples within its member state territories. Fitzpatrick and Darian-Smith, supra note 2 at 1. Indigenous peoples have actively participated in recent treaties or conventions in which their interests are directly or indirectly involved. Notable among these are environmental protection treaties. This is so because of the centrality of ecology to indigenous world views. Indigenous concerns significantly influenced the text of the 1992 Earth Summit: United Nations Conference on Environment and Development, held in Rio de Janeiro. That summit produced a number of agreements, particularly the Convention on Biological Diversity (CBD). The latter is arguably the most authoritative global legal instrument that accords recognition to the ecological knowledge of indigenous and local communities. See, for example, Michael R. Dove, ‘Theories of Swidden Agriculture and Political Economy of Ignorance,’ (1983) 1 Agro Forestry Systems 85–9; see also Roy Ellen and Holly Harris, introduction in Roy Ellen, Peter Parkes and Alan Bicker, eds., Indigenous Environmental Knowledge and Its Transformations: Critical Anthropological Perspectives (Amsterdam: Harwood Academic, 2000) at 12 [Critical Perspectives]; Robert E. Johannes, ed., Traditional Ecological Knowledge: A Collection of Essays (Gland, Switzerland: IUCN, 1989) at 7. See Alexander Wood et al., eds., The Root Causes of Biodiversity Loss (London: Earthscan, 2000). 31 International Legal Materials [I.L.M.] 818 (1992). See Kerry ten Kate and Sarah A. Laird, The Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-Sharing (London: Earthscan, 1999) at 4 [Commercial Use of Biodiversity]. See Vandana Shiva, Monocultures of the Mind: Perspective on Biodiversity and Biotechnology (Penang, Malaysia: Third World Network, 1993) at 153 [Monocultures]. See article 1 of the CBD, supra note 9. See Curtis M. Horton, ‘Protecting Biological Diversity and Cultural Diversity Under Intellectual Property Law,’ (1995) 10 Journal of Environmental Law and Litigation 1 at 5.

Notes to pages 5–6

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14 See Michael Balick, ‘Ethnobotany and Identification of Therapeutic Agents from the Rainforests,’ in P.J. Chadwick and J. Marsh, eds., Bioactive Compounds from Plants (New York: John Wiley and Sons, 1990) at 22–39. 15 See Darrel Posey and Graham Dutfield, Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (Ottawa: IDRC, 1996), 95; see also John Mugabe et al., ‘Managing Access to Genetic Resources’ in Mugabe et al., eds., Access to Genetic Resources: Strategies for Benefit Sharing (Nairobi, Kenya: ACTS Press, 1997) at 6. 16 See Erica-Irene Daes, ‘Study on the Protection of Cultural and Intellectual Property Rights of Indigenous Peoples’ UN Doc.: E/CN.4/sub21/1991/28 (Sub-Commission on Prevention of Discrimination against Minorities – Commission on Human Rights); see also Marie Battiste and James Y. Henderson, Protecting Indigenous Knowledge and Heritage: A Global Challenge (Saskatoon: Purich Publications, 2000), [Battiste and Henderson] at 125–6; William McKinley Klein, ‘The Role of Botanical Gardens and Arboreta in Traditional Medicine: A Personal Reflection and Case Study,’ in Timothy R. Thomlinson and Olayinwola Akerele, Medicinal Plants: Their Role in Health and Biodiversity (Philadelphia: University of Pennsylvania Press, 1998) at 128 [Medicinal Plants]. 17 See Rural Advancement Foundation International Law (RAFI, now ETC Group), Biotechnology and Medicinal Plants (Ottawa: RAFI, 1989), 5; Andrew Gray, ‘The Impact of Biodiversity on Indigenous People,’ in Vandana Shiva et al., Biodiversity: Social and Ecological Perspectives (Penang, Malaysia: World Rainforest Management, 1991) 60 at 67 [Social and Ecological Perspectives]. 18 See L. A. Conte, ‘Shaman’s Pharmaceutical’s Approach to Drug Development’ in Michael J. Balick, Elaine Elizabetsky and Sarah A. Laird, eds., Medicinal Resources of the Tropical Rainforest: Biodiversity and Its Importance to Human Health (New York: Columbia University Press, 1996), 94–100; see also Edgar J. Asebey and J.D. Kempanaar, ‘Biodiversity Prospecting: Fulfilling the Mandate of Biodiversity Convention,’ (1995) 28 Vanderbilt Journal of Transnational Law 703 at 730–6. 19 See Norman R. Farnsworth, ‘How Can the Well Be Dry When It Is Filled with Water?’ (1984) 38 Economics and Botany 4 at 6; see also Collins O. Airhihenbuwa, Health and Culture: Beyond the Western Paradigm (California: Sage Publications, 1995) at 56 [Airhihenbuwa]. 20 See Arun Agrawal, ‘On Power and Indigenous Knowledge,’ in Darrel Posey, ed., Cultural and Spiritual Values of Biodiversity: A Complementary Contribution to Global Biodiversity Assessment (London and Nairobi: Intermediate Technology Publications and UNEP, 1999) 177 at 179 [Agrawal].

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Notes to pages 7–9

21 See Michael A. Gollin, ‘An Intellectual Property Rights Framework for Biodiversity Prospecting,’ in Walter V. Reid et al., eds., Biodiversity Prospecting: Using Genetic Resources for Sustainable Development (New York: World Resources Institute, 1993) at 160; see also J. Robertson and D. Calhoun, ‘Treaty on Biological Diversity: Ownership Issues and Access to Genetic Resources in New Zealand’ (1995) 5 European Intellectual Property Review 219; see generally Jeffrey McNeely, Economics and Biodiversity: Developing and Using Economic Incentives to Conserve Biological Resources (Gland, Switzerland: IUCN, 1988). 22 See A.S. Oddi, ‘The International Patent System and Third World Development: Myth or Reality,’ (1987) 63 Duke Law Journal 831; see also Susan K. Sell, Powers and Ideas: North-South Politics of Intellectual Property and Antitrust (Albany: State University of New York Press, 1998). 23 Oddi, supra note 22 at 837–55. 24 Such alternative forms relate to sui generis protection options. For the text of the TRIPS agreement, see Annex 1C of the WTO Agreement, reprinted in 33 I.L.M. 1197 (1994). 25 See Susan K. Sell, ‘Post-TRIPS Development: The Tension Between Commercial and Social Agendas in the Context of Intellectual Property’ (2002) 14 Florida Journal of International Law 193 at 203–8. 26 Ikechi Mgbeoji, ‘Patents and Traditional Knowledge of Uses of Plants: Is a Communal Patent Regime Part of the Solution to the Scourge of BioPiracy?’ (2001) 9 Indiana Journal of Global Legal Studies 163 at 174–5. 27 See Elaine Elizabetsky, ‘Ethnopharmacological Surveys in Brazilian Extractive Reserves,’ in Medicinal Plants, supra note 16 at 149. 28 See Charles M. Good, Ethnomedical Systems in Africa: Patterns of Traditional Medicine in Rural and Urban Kenya (New York: Guilford Press, 1987), 13–24 [Good]; see also P.A. Twumasi, ‘Aging, Illness and Traditional Medicine in Ghana,’ in Wilbur H. Watson, ed., Black Folk Medicine: The Therapeutic Significance of Faith and Trust (New Brunswick, NJ: Transaction Books, 1984) 17 at 22; T. Akhtar, ‘Exploitation of Medicinal Plants’ in Medicinal Plants, supra note 16 at 82. See generally Airhihenbuwa, supra note 19. 29 See Airhihenbuwa, supra note 19 at 48; see also R.H. Elling, ‘The Capitalist World-System and International Health System,’ (1981) 11 International Journal of Health Services 21–51. 30 See Nathan Sivin, ‘Exploiting Medicinal Plants: Why Do It the Hard Way?’ in Medicinal Plants, supra note 16 at 19. 31 See Farnsworth and Airhihenbuwa, both supra note 19 and accompanying text.

Notes to pages 9–15 227 32 See Action Group on Erosion, Technology and Concentration (ETC Group, formerly RAFI), ‘Atomtech: Technologies Converging at the Nano Scale’ (monograph, January 2003). 33 See Commercial Use of Biodiversity, supra note 10 at 4 and 316. 34 See WIPO, Fact Finding Missions on Intellectual Property and Traditional Knowledge, 1998–1999 (Geneva, April 2001) [FFM]; see also Chidi Oguamanam, ‘Localizing Intellectual Property in the Globalization Epoch: The Integration of Indigenous Knowledge,’ (2004) 11 Indiana Journal of Global Legal Studies 135. 35 See Mohammed Khalil, ‘Biodiversity and the Conservation of Medicinal Plants: Issues from the Perspective of the Developing World,’ in Timothy Swanson, ed., Intellectual Property and Biological Diversity Conservation: An Interdisciplinary Analysis of the Values of Medicinal Plants (New York: Cambridge University Press, 1995) at 233. 36 On the difficulty of setting knowledge boundaries and the fluidity thereof, see Ladislaus M. Semali and Joe L. Kincheloe, eds., What Is Indigenous Knowledge? Voices from the Academy (London: Falmer Press, 1999) at 6; see also Stephen Brush and Doreen Stabinsky, eds., Valuing Local Knowledge: Indigenous Peoples and Intellectual Property Rights (Washington, D.C.: Island Press, 1996) at 6 [Valuing Local Knowledge]. 37 See Chinua Achebe, Home and Exile (New York: Oxford University Press, 2000) at 104; see also Fitzpatrick and Darian-Smith, supra note 2 at 1–4. 38 Critical Perspectives, supra note 7 at 6–11; see also Darrel A. Posey, ‘Introduction: Culture and Nature: The Inextricable Link,’ in Posey, Cultural and Spiritual Values of Biodiversity, supra note 20 at 5; J.F.M. Clark, ‘Mirrors of Humanity: Historical Reflections on Culture and Social Insects,’ ibid. at 242–6. 39 See Gregory Cajete, Native Science: Natural Law of Interdependence (Santa Fe, NM: Clear Light Publishers, 1999) at 14 [Native Science]. ‘Science’ is said to derive from the Greek word for ‘knowledge.’ See The Oxford Modern English Dictionary, 2nd ed. (D. Thompson, ed., 1996), 911. It defines science as ‘a branch of knowledge involving the systematized observation of, and experiment with phenomena, a systematic and formulated knowledge esp. of a specialized type or on a specified subject.’ 40 See Critical Perspectives, supra note 7 at 25. 41 Ibid. at 14–15; see also Arun Agrawal, ‘Indigenous and Scientific Knowledge: Some Comments,’ (1995) 3 Indigenous Knowledge and Development Monitor 5; ‘Dismantling the Divide between Indigenous and Scientific Knowledge,’ (1995a) 26 Development and Change 413–39.

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Notes to pages 15–17

42 See Battiste and Henderson, supra note 16 at 35–41; see also Ian Scoones and John Thompson, eds., Beyond Farmer First (London: Intermediate Technology Publications, 1994) at 19. 43 See Carrol Ginger deShield, ‘Using Indigenous Knowledge in Resource Management: Knowledge of Salmon in the Upper St’at’imc (Lillooet, B.C.)’ (MSc. thesis, University of British Columbia, 1995), 28. 44 Critical Perspectives, supra note 7 at 28, quoting Kay Milton, Environmentalism and Anthropology: Exploring the Role of Anthropology in Environmental Discourse (London: Routledge, 1996) at 170. 45 deShield, supra note 43. 46 See Martha Johnson, ed., Lore: Capturing Traditional Ecological Knowledge (Ottawa: Dene Cultural Institute and IDRC, 1990), 6–10 [Johnson]. Since it was published, Johnson’s categorization appears to have become a major reference in most writings on the subject. For instance, Johnson’s framework was adopted with minimum modification by deShield in 1995 and by Graham Dutfield in his fairly recent work. See Graham Dutfield, ‘TRIPS-Related Aspects of Traditional Knowledge,’ (2001) 33 Case Western Reserve Journal of International Law 233 at 241, and indeed in so many other works. 47 The writers of Critical Perspectives, supra note 7 at 17 referring to Richard Paul, ‘Cultivation: Knowledge or Performance?’ in Mark Hobart, ed., An Anthropological Critique of Development (London: Routledge, 1993) at 62. ‘Performance knowledge’ refers to the ability of local knowledge holders (exemplified by Hausa farmers of Northern Nigeria’s devising of an intercropping system) to improvise or adapt their farming techniques in response to prevailing ecological exigency. 48 Johnson, supra note 46 at 8. 49 Critical Perspectives, supra note 7 at 4. 50 This is not a strong point of distinction. At best it shows the critical overlaps inherent in these characterizations. Western science, from evolution to the present time, has been bedevilled by questions of gender and class bias in a number of respects. Traditional knowledge is not completely immune. See Sandra Harding, Whose Science? Whose Knowledge? Thinking from Women’s Perspectives (Ithaca, NY: Cornell University Press, 1991); see also Sandra Harding, ed., Racial Economy of Science: Toward A Democratic Future (Bloomington: Indiana University Press, 1993) [Racial Economy of Science], Ikechi Mgbeoji, ‘Patents and Plants: Rethinking the Role of International Law in Relation to the Appropriation of Traditional Knowledge of Uses of Plants’ (JSD thesis, Dalhousie University, 2001) at 50–1. [‘Patents and

Notes to pages 18–20

51 52

53 54 55 56 57

58

59 60 61 62 63

64 65 66 67

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Plants’]; see generally Ikechi Mgbeoji, Global Biopiracy: Patents, Plants and Indigenous Knowledge (Vancouver: UBC Press, 2005). See deShield, supra note 43 at 34. See, for example, the following: B.R. Dewalt, ‘Using Indigenous Knowledge to Improve Agriculture and Natural Resource Management,’ (1994) 53 Human Organisation 123; Eugene Hunn, ‘What Is Traditional Knowledge?’ in N. Williams, and G. Barnes, eds., Traditional Ecological Knowledge: Wisdom for Sustainable Development (Canberra: Centre for Resource and Environmental Studies, Australian National University, 1993) 13; H. Zuckerman, ‘The Sociology of Science’ in Niel J. Smelser, ed., The Handbook of Sociology (Newbury Park, CA: Sage Publications, 1988) 511; Critical Perspectives, supra note 7 at 4–5. Critical Perspectives, supra note 7 at 5. Johnson, supra note 46 at 6. Ibid. at 9–10. See Agrawal, supra note 20 at 177. deShield, supra, note 43 at 30; see also R.G.A. Dolby in ‘The Transmission of Science’ (1977) 15 History of Science 1 at 17; H. M. Collin, ‘The Replication of Experiments in Physics,’ in B. Barnes and D. Edge, eds., Science in Context: Readings in the Sociology of Science (Cambridge, MA: MIT Press, 1982). deShield, supra note 43 at 32; see also Liora Salter, Mandated Science: Science and Scientists in the Making of Standards (Boston: Kluwer Academic Publishers, 1993); see generally Philip Kitcher, Science, Truth and Democracy (New York: Oxford University Press, 2001). Leroy Little Bear, Foreword in Native Science, supra note 39 at ix. Ibid. Monocultures, supra note 11 at 10. See Thomas S. Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1970). Little Bear, supra note 59 at x, articulates aspects of Native American paradigm to include ‘ideas of constant motion and flux, existence, consisting of energy waves, interrelationships, all things being animate, space/ place, renewal and all things being imbued with spirit.’ See Peter Drahos, The Philosophy of Intellectual Property Rights (Aldershot, UK: Dartmouth Publishing, 1996) at 63. See Harding, Whose Science?, supra note 50 at 11 and n. 10. See Racial Economy of Science, supra note 50 at 14–15. See Monocultures, supra note 11 at 135.

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Notes to pages 20–3

68 See Valuing Local Knowledge, supra note 36 at 4 (emphasis added). 69 See Critical Perspectives, supra note 7 at 3. 70 See James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996), at 3. 71 All these countries have indigenous majorities. Similarly, a whole population may be indigenous, such as those of Iceland, Tonga, and Papua New Guinea. 72 See International Labour Organization (ILO) Convention No. 169 (1989) Concerning Indigenous and Tribal Peoples in Independent Countries, reprinted in 28 I.L.M. 1382 (1989). 73 See UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘Study of the Problem of Discrimination against Indigenous Populations,’ UN Doc. E/CN.4 sub.2/1986/7/Add.4 para. 379 (emphasis added). 74 For a critique of some definitions of indigenous peoples including Cobo’s, see Wiessner, supra note 1 at 110–15. 75 See Martine de Koning, ‘Biodiversity Prospecting and Equitable Remuneration of Ethnobiological Knowledge: Reconciling Industry and Indigenous Interests,’ in Michael Blakeney, ed., Intellectual Property Aspects of Ethnobiology (London: Sweet and Maxswell, 1999) 25 at 27. 76 See supra nn. 70, 72, and 73. 77 See Stephen Brush, ‘Whose Knowledge, Whose Genes, Whose Rights?’ in Valuing Local Knowledge, supra note 36 at 5. 78 See Surrendra Patel, ‘Can IPRs System Serve the Interest of Indigenous Knowledge,’ in ibid. 305 at 307. 79 See Benedict Kingsbury, ‘Self-Determination and “Indigenous Peoples”’ (1992) 86 American Society of International Law Proceedings 383 at 389; see also Robert H. Barnes, Andrew Gray, and Benedict Kingsbury, Indigenous Peoples of Asia (Ann Arbor, MI: Association of Asian Studies, 1995). 80 Critical Perspectives, supra note 7 at 3. 81 Ibid. 82 See Patel, supra note 78 at 310. 83 See Gray, supra note 17, 60 at 61. The United Nations estimates that there are approximately 300 million indigenous peoples worldwide. See Lydia van de Fliert, ed., Indigenous Peoples and International Organizations (Nottingham UK: Spokesman, 1994) at 3; see also Alex Ewen, ed., Voices of Indigenous People: A Plea to the World (Santa Fe, NM: Clear Light Publishers, 1994) at 9. 84 See Franke Wilmer, The Indigenous Voice in World Politics: Since Time Imme-

Notes to pages 23–7 231

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97 98 99

morial (Newbury Park, CA: Sage Publications, 1993), 177–8; see also See Leon Sheleff, The Future of Tradition: Customary Law, Common Law and Legal Pluralism (London: Frank Cass Publishers, 1999) at 33. This phrase ‘indigenous and local communities’ is used consistently in the CBD perhaps to indicate that the Convention’s conception of knowledge is not restricted only to the knowledge of ‘indigenous peoples.’ See Naomi Roht-Arriaza, ‘Of Seeds and Shamans: The Appropriation of Scientific and Technical Knowledge of Indigenous and Local Communities,’ (1996) 17 Michigan Journal of International Law 919 at 964. Michael Blakeney, ‘The Protection of Traditional Knowledge Under Intellectual Property Law,’ (2000) 20 European Intellectual Property Review 251 at 252. See supra note 78 at 308. It is interesting that Patel would seem to locate the demarcation between the two epistemic realms in time through the use of terms such as ‘modern’ and ‘earlier’ knowledge. The trouble with this approach is that it seems to suggest that traditional or earlier knowledge is antiquated and static and that modern technological knowledge does not have historical roots in antiquity. Neither of these views could be correct; see also supra note 38. See Critical Perspectives, supra note 7 at 3. See FFM, supra note 34 at 23. Ibid. at 26. See Four Directions Council, ‘Forests, Indigenous Peoples and Biodiversity’ (contribution of Four Directions Council to the Secretariat of the Convention on Biological Diversity) (Lethbridge, AB: FDC, 1996). See Battiste and Henderson, supra note 16. The authors argue that there is no definition that fully captures ‘traditional knowledge.’ See, for example, Brush, supra note 36 at 4–5; Johnson, supra note 46 at 4; deShield, supra note 43 at 1–2. See Howard Mann, ‘Intellectual Property Rights, Biodiversity and Indigenous Knowledge: A Critical Analysis in the Canadian Context,’ paper prepared for the Canadian Working Group on Article 8(j) of the Convention on Biological Diversity, November 1997, at 1. See FFM, supra note 34 at 25. See Collin Perrin, ‘Approaching Anxiety: The Insistence of the Postcolonial in the Declaration on the Rights of Indigenous Peoples’ in Fitzpatrick and Darian-Smith, supra note 2, 9 at 24. See FFM, supra note 34 at 25. Compare Brush’s approach in Valuing Local Knowledge, supra note 36 at 7. Cajete, supra note 39 at 115.

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Notes to pages 27–9

100 See Mark J. Plotkin, ed., Tales of a Shaman’s Apprentice: An Ethnobotanist Searches for New Medicines in the Amazon Rain Forest (New York: Viking, 1993). 101 This is the concept of ‘permaculture,’ a feature of indigenous science that is based on ecological principles of creating a sustainable earth and ensuring that plants used for food, medicine, art production, and trade would be perpetuated. See Cajete, supra note 39 at 140–1. 102 This is a popular herb, the extract of which is used in treating a wide array of diseases such as malaria, coughs, diarrhea, fevers, muscle aches, and headaches. See Khalil, supra note 35 at 238. 103 Ibid. at 240; see also D. Hargone, ‘Indonesia: The Utilization of Medicinal Plants for Primary Health Care’ in Medicinal Plants, supra note 16 at 144–8. 104 See the Crucible Group, People, Plants and Patents: The Impact of Intellectual Property on Trade, Plant Biodiversity and Rural Society (Ottawa: IDRC, 1994) at xviii. 105 See Steven King et al., ‘Biological Diversity, Indigenous Knowledge, Drug Discovery and Intellectual Property Rights,’ in Valuing Local Knowledge, supra note 36, 167 at 179. 106 See Good, supra note 28 at 2 (qualifiers added). Compare WHO’s definition of traditional medicine: ‘the sum total of the knowledge, skills and practices based on the theories, beliefs, and experiences indigenous to different cultures, whether explicable or not, used in the maintenance of health, as well as in the prevention, diagnosis, improvement or treatment of physical and mental illness.’ See WHO Doc., WHO/EDM/TRM/2000; see also Ong Chui Koon, ‘Intellectual Property Protection of Traditional Medicine and Treatments in Malaysia’ in Blakeney, supra note 75, 155 at 157; see also, World Health Organization, Traditional Medicine Strategy 2002–2005 (Geneva: WHO, 2002) at 7 (defining traditional medicine ‘as including diverse health practices, approaches, knowledge and beliefs incorporating plant, animal and/or mineral based medicines, spiritual therapies, manual techniques and exercises applied singularly or in combination to maintain well-being, as well as to treat, diagnose or prevent illness’). 107 See Walter V. Reid, ‘Genetic Resources and Sustainable Agriculture: Creating Incentives for Local Innovation and Adaptation’ Biopolicy Series #2 (Nairobi: African Centre for Technology, 1992). 108 See Valuing Local Knowledge, supra note 36 at 3. 109 Quoting Mark Hannig in ‘An Examination of the Possibility to Secure Intellectual Property Rights for Plant Genetic Resources Developed by Indigenous People’s of the NAFTA States: Domestic Legislation Under

Notes to pages 29–36

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113 114 115 116

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the International Convention for New Plant Variety,’ (1996) 13 Arizona Journal of International and Comparative Law 175 at 197. See, for instance, articles 16 and 27 of the CBD and the TRIPS Agreement respectively. See Thomas Greaves, ‘Tribal Rights: Independent Protection Mechanism for Indigenous Peoples,’ in Valuing Local Knowledge, supra note 36 at 36. See Michael Dove, ‘Center, Periphery, and Biodiversity: A Paradox of Governance and Developmental Challenge’ in Valuing Local Knowledge, supra note 36 at 57. Ibid. at 49. See Brush in Valuing Local Knowledge, supra note 36 at 18. Khalil, supra note 35 at 240. See Anil K. Gupta, ‘Getting Creative Individuals and Communities Their Due: Framework for Operationalizing Article 8(j) and Article 10(c),’ paper submitted to the CBD Secretariat, 1996; see also Graham Dutfield, Intellectual Property Rights, Trade, and Biodiversity: Seeds and Plant Varieties (London: Earthscan, 2000) at 120–1. See Dutfield, ibid. at 62, 66. See Roberk K. Paterson and Dennis S. Karjala, ‘Looking Beyond Intellectual Property in Resolving Protection of Intangible Cultural Heritage of Indigenous Peoples’ (2003) 11 Cardozo Journal of International Law and Dispute Resolution 633. For diverse and robust perspectives on this debate, see Silke von Lewinski, ed., Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge and Folklore (The Hague: Kluwer Law International, 2003).

2. Conceptual Perspectives on Biodiversity, Traditional Knowledge, Intellectual Property, and the Protection of Indigenous Peoples in International Law 1 See Calestous Juma, foreword, (1997) 6 Review of European Community Intellectual Property Law at iii. 2 Dr. Rosen, the initiator of the U.S. National Forum on BioDiversity, served in the Commission on Life Sciences of the National Research Council/National Academy of Science of the U.S. See Edward O. Wilson, ed., Biodiversity (Washington, DC: National Academy Press, 1988) at vi [Biodiversity]; see also Fiona McConnell, The Biodiversity Convention: A Negotiation History (Boston: Kluwer Law International, 1996) at 5. Specifically, Dan L. Perlman and Glenn Adelson write: ‘The term Biodiversity

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12

13 14

15 16

17

Notes to pages 36–7 was probably first used by Walter G. Rosen while organizing the conference that came to be known as the National Forum on BioDiversity, held in Washington, DC, during September 1987.’ Selected papers from the forum were eventually published in Wilson’s Biodiversity, supra. See Dan L. Perlman and Glenn Adelson, Biodiversity: Exploring Values and Priorities in Conservation (Malden, MA: Blackwell Science, 1997) at 19. See the following: Timothy Swanson et al., ‘Biodiversity and Economics,’ in Brian Groombridge, ed., Global Biodiversity: Status of the Earth’s Living Resources – A Report Compiled by the World Conservation Monitoring Centre (WCMC) (London: Chapman and Hall, 1992) at 207; H. Salwasser, ‘Managing Ecosystems for Variable Population of Vertebrates: A Focus for Biodiversity,’ in James K. Agee and Daryll R. Johnson, eds., Ecosystem Management for Park and Wilderness (Seattle: University of Washington Press, 1988) at 87; Perlman and Adelson, supra note 2 at 7. See Perlman and Adelson, supra note 2 at 11. Ibid. at 9. Ibid. at 20. Ibid. at 10. See Paul M. Wood, Biodiversity and Democracy: Rethinking Society and Nature (Vancouver: UBC Press, 2000) at 39 [Wood]. Ibid. at 37 (emphasis in the original). Ibid. Contra Perlman and Adelson’s emphasis on practical conceptual approach to biodiversity. See Michael Bowman and Catherine Redgewell, eds., International Law and the Conservation of Biological Diversity (Boston: Kluwer Law International, 1996) at 12 [Bowman and Redgewell]. See paragraph 4 of the preamble, articles 3 and 15(1) of the Convention on Biological Diversity [CBD], reprinted in 31 International Legal Materials [I.L.M.] 818 (1992). See supra note 11. For instance, preamble 3 of the CBD reads, ‘The Contracting Parties, affirming that the conservation of biological diversity is a common concern of humankind have agreed as follows …’ See supra note 3. See Jeffery A. McNeely et al., Conserving the World’s Biological Diversity (Washington, DC: IUCN, 1990) at 17; see also Michael Bowman, ‘The Nature, Development and Philosophical Foundations of the Biodiversity Concept in International Law,’ in Bowman and Redgewell, supra note 11 at 5 and n. 1. Wood, supra note 8 at 38.

Notes to pages 37–9 235 18 See Biological Diversity Conservation and the Law: Legal Mechanisms for Conserving Species and Ecosystems (Gland, Switzerland: IUCN, 1993) at 3. 19 See Bowman and Redgewell, supra note 11 at 5; Susan Biggs, ‘The Biodiversity Convention and Global Sustainable Development,’ in Ray Kiely and P. Marfleet, eds., Globalization and the Third World (London: Routledge, 1998) 113 at 116; National Research Council of the United States, Perspectives on Biodiversity: Valuing Its Role in the Everchanging World (Washington, DC: National Academy Press, 1999) at 20 [NRC]; Karen W. Baer, ‘A Theory of Intellectual Property and the Biodiversity Treaty’ (1995) 21 Syracuse Journal of International Law and Commerce 259 at 271. 20 See Lakshman D. Guruswamy and Jeffery A. McNeely, eds., Protection of Global Diversity: Converging Strategies (Durham, NC: Duke University Press, 1998) at 1. 21 See R.C. Gardiner, ‘Diverse Opinions on Biodiversity,’ (1999) 6 Tulsa Journal of Comparative and International Law 303; Daniel M. Bodnasky, ‘International Law and Protection of Biological Diversity,’ (1995) 28 Vanderbilt Journal of Transnational Law 623 at 627–8. 22 See article 2 of the CBD, supra note 12 (emphasis added). In the same article, the CBD defines ‘biological resources’ as ‘genetic resources, organisms or parts thereof, populations, or any other biotic component of eco-systems with actual or potential use or value for humanity.’ 23 See Perlman and Adelson, supra note 2 at 7–8 and n. 11. 24 Consider that ‘[a]mongst the top 150 most prescribed drugs in the USA, 56% contain compounds which are attributable, at some point in manufacture or design, to animals (23%), plants (18%), bacteria (4%), fungi (11%).’ However, some 70 to 90% of herbal medicines of ‘wild’ origin are imported into Europe for trade, even as 80% of the global population in developing countries relies on herbal/traditional medicine for primary health care. See Brian Groom-bridge and Martin D. Jenkins, Global Biodiversity: Earth’s Living Resources in the 21st Century (Cambridge, UK: World Conservation Monitoring Press, 2000) at 68–9 [Global Biodiversity]. 25 Ibid. at 69. 26 See Norman R. Farnsworth, ‘Screening Plants for New Medicines’ in Biodiversity, supra note 2 at 91; Norman Farnsworth, ‘Safety, Efficacy and the Use of Medicinal Plants’ in Timothy R. Tomlinson, and Olayiwola O. Akerele, eds., Medicinal Plants: Their Role in Health and Biodiversity (Philadelphia: University of Pennsylvania Press, 1998) at 29 [Medicinal Plants]. 27 In this study Kate and Laird exclude applications of biotechnology in health care, cosmetics and personal care products: see The Commercial Use

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30 31

32 33 34 35

36 37 38 39 40 41

42

43

Notes to pages 39–40 of Biodiversity: Access to Genetic Resources and Benefit-Sharing (London: Earth-scan, 1999) at 1. Ibid. at 1 and 2. Figures used here by the authors are for 1997. See Vandana Shiva, Biodiversity Conservation: Social and Ecological Perspectives (London and Penang, Malaysia: World Rainforest Movement/Zed Books, 1991) at 60 [Social and Ecological Perspectives]; see also Global Biodiversity, supra note 24; Kevin J. Gaston and John I. Spicer, Biodiversity: An Introduction (Malden, MA: Blackwell Science, 1998). See Social and Ecological Perspectives, supra note 29 at 23. See Vandana Shiva, Monocultures of the Mind: Perspective on Biodiversity and Biotechnology (Penang, Malaysia: Third World Network, 1993) at 69 [Monocultures]. Despite its smallness in size, New Guinea is said to be probably the most biodiverse place on Earth. See Social and Ecological Perspectives, supra note 29 at 60. Ibid. at 16. Ibid. at 24. McNeely et al., supra note 16 at 22–3; see also Jeffrey McNeely, Economics and Biological Diversity: Developing and Using Economic Incentives to Conserve Biological Resources (Gland, Switzerland: IUCN, 1988) at 97. See Social and Ecological Perspectives, supra note 29 at 22–3. See Gaston and Spicer, supra note 29 at 46. Ibid. at 43. See B. Huntley, ‘Conserving and Monitoring Biotic Diversity: Some African Examples’ in Biodiversity, supra note 2, 248 at 251. See McNeely, supra note 35 at 4. Among the biodiversity hot spots are the Northern Brazilian Amazon, the interiors of the Guyanas, the Central Zaire (Congo) basin, Mexico, the Andean Region, Costa Rica, Madagascar, Indonesia, Colombia, and many others classified as developing or Third World countries; see also Russell A. Mittermeier, ‘Primate Diversity and the Tropical Forest: Case Studies from Brazil and Madagascar and the Importance of the Megadiversity Countries’ in Biodiversity, supra note 2, 145 at 153. See Wilhelm Barthlott and Jens Mutke (of the Botanic Institute Gardens of the University of Bonn, Germany), ‘Biomap: Biodiversity Mapping for Protection and Sustainable Use of Natural Resources,’ available at (accessed 11 October 2004); see also Global Biodiversity, supra note 24 at 41–2, 51–2. See Social and Ecological Perspectives, supra note 29 at 16; see also Peter Raven and Jeffrey McNeely, ‘Biological Extinction: Its Scope and Meaning for Us,’ in Guruswamy and McNeely, supra note 20 at 13.

Notes to pages 41–3 237 44 See Global Biodiversity, supra note 24 at 110 and 112. 45 See Edward Wilson, ‘Current State of Biodiversity,’ in Biodiversity, supra note 2 at 14. 46 This would include ‘all forests in other parts of the tropics and subtropics (those in Mexico, Central America, the West Indies, Andean, South America, the Eastern and Southern portions of Amazon), all the forests of Africa outside the Central Zaire basin, and the forests of tropical and subtropical Asia.’ See Peter H. Raven, ‘Our Diminishing Tropical Forests’ in Biodiversity, supra note 2, 119 at 120. 47 See Wood, supra note 8 at ix. 48 Ibid.; see also McNeely supra note 16 at 37. 49 See supra note 43 at 13. 50 See W.E. Rees and Wackernagel, ‘Ecological Footprints and Appropriate Carrying Capacity: Measuring the Natural Capital Requirements of the Human Economy,’ in Ann-Marri Jansson et al., eds., Investing in Natural Capital: Ecological Economists Approach to Sustainability (Washington, DC: Island Press, 1994) 362 at 364. 51 See Bryan G. Norton, Why Preserve Natural Variety? (Princeton, NJ: Princeton University Press, 1987) at 6; see also Wood, supra note 8 at 36. 52 See David Ehrenfeld, The Arrogance of Humanism (New York: Oxford University Press, 1981). 53 This approach is translated into practice through a cost-benefit criterion. Part of its weakness is that since a cost-benefit criterion is driven by market considerations, the latter ‘fail to reflect the full value of public goods.’ See NRC, supra note 19 at 74. 54 See C. Joyce, ‘Taxol: Search for a Cancer Drug,’ (1993) 43 BioScience at 133. 55 See Perlman and Adelson, supra note 2 at 50–5. 56 For some insight into the question of legitimacy, see Ehrenfeld’s Arrogance of Humanism, supra note 52; Michael W. Hanemann, ‘Economics and the Preservation of Biodiversity,’ in Biodiversity, supra note 2, 193 at 198. 57 See Wood, supra note 8 at 85–106. 58 See NRC, supra note 19 at 73. 59 Utilitarianism has been used both as the basis for animal liberation arguments as well as in support of the interests of all life forms. See Peter Singer Animal Liberation (New York: Avon Books, 1975); Peter Singer, ‘A Utilitarian Population Principle,’ in Michael D. Bayles, ed., Ethics and Population (Cambridge, MA: Schenkman, 1976); Robin Attfield, The Ethics of Environmental Concern (New York: Columbia University Press, 1983). The NRC argues that utilitarianism is concerned with ‘public good’ and ‘community values.’ See NRC, supra note 19. 60 Utilitarianism judges the effectiveness of action on the basis of how it

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65 66 67

68 69

70

71 72

Notes to pages 44–5 satisfies people’s preferences. It is the substantive framework for economic analyses of value. The economic value approach ‘does not tell us everything we need to know about biodiversity.’ See the following: NRC, supra note 19 at 4; Hanemann, supra note 56; Bryan Norton, ‘Commodity, Amenity and Morality: The Limits of Quantification in Valuing Biodiversity,’ in Biodiversity, supra note 2 at 200; Richard B. Norgaard, ‘The Rise of the Global Exchange Economy and the Loss of Biodiversity,’ in ibid. at 206; David Ehrenfeld, ‘Why Put Value on Biodiversity?’ in ibid. at 212. Contra A. Randall, ‘What Mainstream Economists Have to Say about the Value of Biodiversity,’ in ibid. at 217–23. See section 2.1.6, below for the clarification of the concept of ‘benefits’ in the context of biodiversity. Gaston and Spicer, supra note 29 at 77. Ibid. at 76. It has been observed that ‘[d]espite the extensive exploration of natural products throughout the past century, only a minority of plants, microbes or other organisms have received more than superficial screening.’ See Stephen K. Wrigley et al., eds., Biodiversity: New Leads for Pharmaceutical and Agrochemical Industries (Cambridge, UK: The Royal Society of Chemistry, 2000), iii. See Biodiversity, supra note 2 at 15. See NRC, supra note 19 at 44–5. The WCMC reports that landings of aquatic resources totalled 99.5 metric tonnes in 1989, of which 70 per cent were used for human consumption. See Gaston and Spicer, supra note 29 at 77. Norman R. Farnsworth, ‘Screening Plants for New Medicines’ in Biodiversity, supra note 2, 83 at 91. See T. Eisner, ‘Prospecting for Nature’s Chemical Riches,’ (1989) Issues in Science and Technology 31–6; see also Gaston and Spicer, supra note 29 at 77. Gaston and Spicer, ibid. at 78; see also W.E. Kunin, and J.H. Lawton, ‘Does Biodiversity Matter? Evaluating the Case for Conserving Species,’ in Kevin J. Gaston, ed., Biodiversity: A Biology of Numbers and Difference (Oxford: Blackwell Science, 1996) at 283. See James D. Nations in Biodiversity, supra note 2 at 81; see also Gaston and Spicer, supra note 29 at 77. In those limited sectors, the annual sales in the biotechnology industry in the United States alone, in 1993, was US$10–12 billion. The expected estimate in 2035 is US$100 billion. See R.R. Colewell, ‘Biodiversity and Biotechnology,’ in Majorie L. Reaka-Kudla, Don E. Wilson, and Edward O.

Notes to pages 46–9 239

73

74 75

76 77

78

79 80 81 82 83

84 85 86 87

Wilson, eds., Biodiversity II: Understanding and Protecting Our Biological Resources (Washington, D.C: Joseph Henry Press 1992) at 279–87. Compare the IUCN’s definition: ‘Ecotourism is environmentally responsible travel and visitation to relatively undisturbed natural areas, in order to enjoy and appreciate nature (and any accompanying cultural features – both past and present [ – ] that promotes conservation, has low negative visitor impact, and provides for beneficially active socio-economic involvement of local populations).’ See Ceballos-Lascurain, Tourism, Ecotourism and Protected Areas (Gland, Switzerland, IUCN, 1996), available at http://www.pubplan.nau.edu/~alew/pl376/Readings/ecotourismdef .html (accessed 12 March 2002); International Ecotourism Society http:// www.eco-tour.org/info/w_10176_de.html (accessed 1 April 2002). See NRC, supra note 19 at 47. See F.L. Fillion et al., ‘The Economics of Global Ecotourism’ in M. Munasinghe and J. McNeely, Protected Area Economics and Policy: Linking Conservation and Sustainable Development (Washington, DC: World Bank, 1994). Gaston and Spicer, supra note 29 at 80. See M. Gleich et al., Life Counts: A Global Balance of Biodiversity (‘popular account of the status of global biodiversity at the beginning of the 21st century’) a complimentary publication of the WCMC’s Global Biodiversity Project previewed in Global Biodiversity, supra note 24, at vii. See text of the resolution at Ecopolitics IX Conference, Darwin, Australia, 1995, excerpted in Darrel A. Posey, ‘Introduction: Culture and Nature – The Inextricable Link,’ in Darrel A. Posey, ed., Cultural and Spiritual Values of Biodiversity: Complementary Contribution of the Global Biodiversity Assessment (Nairobi and London: UNEP and Intermediate Technology, 1999) at 8 [Cultural and Spiritual Values of Biodiversity]. See Norton, supra note 51 at 135–82; see also Perlman and Adelson, supra note 2 at 43. David Ehrenfeld, ‘Why Put Value on Biodiversity?’ in Biodiversity, supra note 2, 212 at 214–15. See NRC, supra note 19 at 62; see also Norton, supra 51 at 10. Gaston and Spicer, supra note 29 at 83. See, for example, the following: Gaston and Spicer, supra note 29; McNeely, supra note 35, Alexander Wood, et al., eds., The Root Causes of Biodiversity Loss (London: Earthscan, 2000) [Root Causes]. Perlman and Adelson, supra note 2 at 39–51. Ibid. at 39. Ibid. Ibid.

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88 Ibid. 89 Ibid. 90 For instance, Andrew Gray writes, ‘Holistic clusters of connections link aspects of life in indigenous cosmologies which western thought separates: this is why indigenous peoples have distinct value systems conceptualizing and acting on the world. Values are given to phenomena according to their perceived context within a system: Thus for Western economies value is given to a commodity on the basis of exchange potential in a system …’ See A. Gray, ‘Indigenous Peoples, Their Environments and Territories,’ in Cultural and Spiritual Values of Biodiversity, supra note 78 at 64. 91 Gray, ‘The Impact of Biodiversity Conservation on Indigenous Peoples,’ in Social and Ecological Imperative, supra note 29 at 62. 92 Ibid. at 61; see also Posey, supra note 78 at 3. 93 See Monocultures, supra note 31 at 17. 94 Ibid. at 9. 95 Ibid. at 41. 96 Ibid. 97 Ibid. 98 James Henderson, ‘Ayukpachi: Empowering Aboriginal Thought,’ in Marie Battiste, ed., Reclaiming Indigenous Voices and Vision (Vancouver: UBC Press, 2000) 248 at 259. 99 Ibid. at 258. 100 See Marie Battiste and James Henderson, Protecting Indigenous Knowledge and Heritage: A Global Challenge (Saskatoon: Purich, 2000) at 43. 101 See Gregory Cajete, ‘Science: A Native American Perspective: A Culturally Based Science Education Curriculum’ (Ph.D. thesis, International College, Los Angeles, 1986), at 123. 102 Ikechi Mgbeoji, ‘Patents and Plants: Rethinking the Role of International Law in Relation to the Appropriation of Traditional Knowledge and Uses of Plants (TKUP)’ (S.J.D. thesis, Dalhousie University, 2001) at 132 [‘Patents and Plants’]. 103 See I. Krishan, ‘Wounded Nature Versus Human Future,’ (1995) 19 Cochin University Law Review 1 at 2. 104 Patents and Plants, supra note 102 at 132–3. 105 An annual surplus in global food supply for over 15 per cent more people than the global population has been recorded since 1973. However, each year for the past two decades, roughly 900 million people have been undernourished because of unequal access to food. See Global Biodiversity, supra note 24 at 63–4.

Notes to pages 54–6 241 106 See Monocultures, supra note 31 at 6 and 39. 107 See NRC, supra note 19 at 46. See generally Action Group on Erosion, Technology and Concentration, ‘Atomtech: Technologies Converging at the Nano-Scale’ (ETC Group formerly RAFI), (monograph, January 2003). 108 See McNeely, supra note 16 at 47. 109 See Raven and McNeely, supra note 43 at 14. 110 Shiva, in Social and Ecological Perspectives (citing a 1988 Study by IUCN). See supra note 29 at 33–4. 111 Ibid. 112 See McNeely, supra note 35 at xiii. 113 Social and Ecological Perspectives, supra note 29 at 31. 114 Ibid. at 7–8. 115 See Root Causes, supra note 82 at 4. For instance, the Debt-for-Nature initiative by which Third World countries are granted debt forgiveness on the basis of ‘good environmental behaviour’ is based on the assumption that environmental degradation is a Third World or indigenous people’s phenomenon. It downplays the international political economy as the root of resource depletion. 116 Ibid. 117 See McNeely, supra note 16 at 38–9. 118 See J.D. Nations, ‘Deep Ecology Meets the Developing World,’ in Biodiversity, supra note 2 at 79. 119 See Root Causes, supra note 83 at 66–7. 120 Ibid. at 66. 121 Ibid. 122 Ibid. 123 The emergence of the WTO regime at the end of the last century and the formation of regional trading blocs such as the NAFTA accentuate this trend. See ibid. at 67. 124 In exceptional cases, that may well be so. For instance, Malaysian and Chinese businesses are fingered in unethical exploration of oil in the Sudan. Malaysian private companies are active participants or collaborators in the destruction of tropical rainforests not only in Malaysia but also in South America. 125 See Social and Ecological Perspectives, supra note 29 at 8. 126 See R. Goodland et al., Tribal Peoples and Economic Development: Human Ecological Considerations (Washington, DC: World Bank, 1982); see also Franke Wilmer, The Indigenous Voice in World Politics: From Time Immemorial (London: Sage Publications, 1993) at 180–2; see also World Bank Operational Directive 4.20, ‘Indigenous Peoples’ (World Bank, 1991),

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128 129

130

131 132

133

134

135

136 137

138 139 140

Notes to pages 57–60 available at http://www.worldbank.org (search for ‘OD 4.20’) (accessed 10 October 2004). See James S. Anaya and S. Todd Cridder, ‘The Mayagna Indigenous Community of Nicaragua: Moving from Conflict to a Convergence of Interests,’ in Guruswamy and McNeely, supra note 20 at 202–2. See Nations in Biodiversity, supra note 118 at 79–80. See B.W. Bugbee, Genesis of American Patent and Copyright Law (Washington, DC: Bureau of Public Affairs, 1967) at 1–56 [Genesis]; see also B.W. Bugbee, ‘The Early American Law of Intellectual Property: The Historical Foundations of the United States Patents and Copyright Systems’ (Doctoral dissertation, University of Michigan, 1961). See David R. Downes, ‘How Intellectual Property Could Be a Tool to Protect Traditional Knowledge,’ (2000) 25 Columbia Journal of Environmental Law 253 at 256. See Fredrick Abbot et al., eds., The Making of Modern Intellectual Property System (The Hague: Kluwer Law International, 1999), 156. See Justin Hughes, ‘The Philosophy of Intellectual Property,’ in Adam D. Moore, ed., Intellectual Property: Moral, Legal and International Dilemmas (New York: Rowman and Littlefield Publishers, 1997) 107 at 114; see also John Locke, Second Treatise on Government, sec. 138–40 in P. Laslett, ed., Two Treatises of Government (New York: Cambridge University Press, 1963). See Peter Drahos, ‘The Universality of Intellectual Property Rights: Origins and Developments,’ available at http://www.wipo.int/tk/en/ actvities/1998/humanrights/pages/word/drahos.doc (accessed 10 October 2004) [Universality]. See Hughes, supra note 131 at 107; see generally Peter Drahos and John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: New Press, 2002). See Harry Hillman Chartrand, ‘Intellectual Property in the Global Village,’ Government Information In Canada 7 no. 4, available at http:// www.usask.ca/library/gic/v1n4/chartrand/chartrand.html (accessed 18 March 2002). Ibid. There are, however, categories of intellectual property rights that are not essentially market based, such as moral rights. See Downes, supra note 130. Genesis, supra note 129 at 5. Ibid. See Norman W. Spaulding III, ‘Commodification and its Discontents:

Notes to pages 60–2 243

141

142 143 144

145

146

147 148

149

Environmentalism and the Promise of Market Incentives’ (1997) 16 Stanford Environmental Law Journal 294 at 311. See Patents and Plants supra, note 102 at 53 and n. 143 citing G.W.F. Hegel, Philosophy of Right, trans. T.M. Knox, 1st ed. (Oxford: Clarendon Press, 1967) at 151. Chartrand, supra note 135. Ibid. See Ruth L. Gana, ‘Prospects for Developing Countries Under the TRIPS Agreement,’ (1996) 29 Vanderbilt Journal of Transnational Law 735 at 770–1. See, for example, references to ‘indigenous,’ ‘tribal,’ ‘traditional,’ ‘local,’ and/or ‘other communities’ in most instruments on the protection of indigenous knowledge including the ILO Convention No. 169 (1989) Concerning Indigenous and Tribal Peoples in Independent Countries, 28 I.L.M. 1382 (1989). See also the list of international environmental instruments, infra note 175. Both Casas (1474–1566) and Vitoria (1486–1547) were Dominican clerics and intellectuals who devoted a substantial amount of their time to affirming the essential humanity of Indians of the Western Hemisphere. See Anthony Anghie, ‘Francisco Vitoria and the Colonial Origins of International Law’ (1996) 5 Social and Legal Studies 321–36, Arthur Nussbaum, A Concise History of Law of Nations, rev. ed. (New York: Macmillan, 1954) at 79–84; see also Douglas Sanders, ‘The Re-Emergence of Indigenous Questions in International Law’ (1983) Canadian Human Rights Yearbook 1 at 4–6. See James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996) at 13, quoting Harold Damerow. However, Anghie points out that according to Vitoria, the conventional view that sovereignty was developed in the West and exported to the world may be misleading. On the contrary, the ‘[s]overeignty doctrine acquired its character through the colonial encounter.’ See Anghie, supra note 146 at 332. See, for example, John Westlake, Chapters on the Principles of International Law (Cambridge: Cambridge University Press, 1894); Alexander P. Higgins, ed., William E. Hall, A Treatise on International Law, 8th ed. (1924), H. Lauterpacht, ed., Lassa Oppenheim, International Law: A Treatise, 7th ed. (London: New York: Longmans Green Co., 1948–52); Charles C. Hyde, International Law as Chiefly Interpreted and Applied by the United States (Boston: Little, Brown, 1945); Mark F. Lindley, The Acquisition and Government of Backward Territory in International Law (London: Longman, 1926).

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150 Siegfried Wiessner, ‘Rights and Status of Indigenous Peoples: A Global and Comparative and International Legal Analysis,’ (1999) 12 Harvard Human Rights Journal 57 at 98 [‘Rights and Status’]. 151 See GA Res. 1514 (XV), UN GAOR, 15th Sess. Supp. No. 16, UN Doc. A/ 4684 (1961) 166, 14 December 1960, otherwise less appropriately called the ‘Charter of Decolonization.’ Although this Charter is associated with the decolonization process, it is important to note that by 1960 when the Declaration was made, most colonies had become independent. 152 Based on the distinction between overseas possessions and ‘internal fusions of indigenous and immigrant populations.’ Chapter XI of the UN Charter and its empowering Resolution 1514 (XV) of 1960 for the granting of independence to colonial countries and peoples was not extended to indigenous peoples in the enclave territories for the fear that it might result in ‘partial or total disruption of the national unity and the territorial integrity’ of countries where settler withdrawal was not feasible. See Russel Lawrence Barsh, ‘Indigenous North America and Contemporary International Law,’ (1983) 62 Oregon Law Review 73 at 84–90. 153 See Keith Nunes, ‘“We Can Do … Better”: Rights of Singular Peoples and the United Nations Draft Declaration on the “Rights of Indigenous Peoples,”’ (1995) 7 St. Thomas Law Review 521 at 528. 154 Anaya, supra note 147 at 41. 155 Adopted and proclaimed by the General Assembly of the United Nations, 10 December 1948; see G.A. Res. 217A (III), UN GAOR, 3rd Sess., Supp. No. 13, UN Doc. A/810 (1948) 71. 156 GA Res. 2200A (XXI), UN GAOR, 21st Sess., Supp. No. 16, UN Doc. A/ 6316 (1966) 52 (16 Dec. 1966), reprinted in 6 I.L.M. 368 (1967). 157 GA Res. 2200A (XXI), UN GAOR, 21st Sess., Supp. No. 16, UN Doc. A/ 6316 (1996) (16 Dec. 1966), reprinted in 6 I.L.M. 360 (1967). 158 See ‘Rights and Status,’ supra note 150 at 98. 159 See Douglas Sanders, ‘Indigenous Peoples in Comparative and International Law’ (1998) (unpublished lecture notes, archived at Faculty of Law Library, University of British Columbia) at 27 [‘Indigenous Peoples in Comparative’]. 160 See Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law,’ (2001) 34 Journal of International Law and Politics at 189–190 [‘Conceptual Structures’]. 161 Ibid. at 190. 162 Ibid. at 191. 163 See Russel Lawrence Barsh, ‘Indigenous Peoples: An Emerging Object of

Notes to pages 65–7 245

164 165

166

167

168 169 170

171 172 173

174

175

International Law,’ (1986) 80 American Journal of International Law 369 at 378. ‘Conceptual Structures,’ supra note 160 at 191. See Siegfried Wiessner, ‘Joining Control to Authority: The Hardened “Indigenous Norm,”’ (2000) 25 Yale Journal of International Law 301 at 305 [‘Hardened Norm’]. The text of the Statute of International Court of Justice is reprinted in I. Brownlie, ed., Basic Documents in International Law, 4th ed. (Oxford: Clarendon Press, 1995), 438. For a discussion of sources of International Law including those enunciated in article 38(1) of the statute and other nonstatute sources, see Peter Malaczuk, ed., Akehurst’s Modern Introduction to International Law, 7th rev. ed. (London: Routledge, 1999) at 35–62. Adopted by the General Conference of the International Labour Organization, Geneva, 27 June 1989, and entered into force 5 September 1991, reprinted in 28 I.L.M. 1382 (1989). Anaya, supra note 147 at 47. Ibid. at 51. United Nations Draft Declaration on the Rights of Indigenous Peoples – as agreed on by the U.N. Working Group on Indigenous Populations at its Eleventh Session, Geneva, July 1993. Adopted by the Sub-commission on Prevention of Discrimination and Protection of Minorities by its resolution 1994–45 of 26 August 1994, UN Doc.E.CN.4.1995/2, E/CN/ SUB.2/1994 56, at 105 (1994), reprinted in 34 I.L.M. (1995). Rights and Status, supra note 150 at 102. First approved by ECOSOC Res. 2000/22 of 28 July 2000, E/2000/INF/2/ Add.2. See John Carey and Siegfried Wiessner, ‘A New United Nations Subsidiary Organ: The Permanent Forum on Indigenous Issues,’ American Association of International Law (ASIL) ‘Insight,’ 17 April 2001, available at http://www.asil.org/insights/insigh67.htm (accessed 9 April 2003). See UN Doc. E/2002/42 Suppl. 43, 1 June 2002, 14, outlining the mandate of the forum. For a list of some indigenous organizations, see ‘The Institutions of the European Union and Indigenous Peoples’ in Lydia Van de Fliert, ed., Indigenous Peoples and International Organizations (Nottingham: Spokesman, 1994), at 197–201. Among them, the Agenda 21, the Rio Declaration on Environment, 31 I.L.M. 874 (1992), the Non-Legally Binding Authoritative Statement of Principles for the Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (The Forest Prin-

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177

178 179 180 181

182

183

184 185

186

Notes to pages 68–9 ciples) 31 I.L.M. 881 (1992), the Convention on Biological Diversity (CBD) 31 I.L.M. 818 (1992), the Framework Convention on Climate Change 31 I.L.M. 289 (1992) and the Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 33 I.L.M. 1332 (1994). Between 1988 and 1993, the European Parliament drew up twenty-eight reports and resolutions bearing relevance to indigenous peoples and their plights. See Van de Fliert, supra note 174 at 15. Specific resolutions of the European Parliament have been directed to the following indigenous groups: Penan, Mutang, Kelabit, and Keyan; in Sarawak (Malaysia), Yanomami and Awa Guaja in Brazil, Inuit in Canada, Tuareg in Mali and Niger, Nuba in Sudan. See Van de Fliert, supra note 174 at 15–18. See ‘Rights and Status,’ supra note 150 at 79. Ibid. at 64. See for example, Native American Languages Act, 1990 and Native American Graves Protection Act, 1990. See Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; see also Stan Persky, The Supreme Court of Canada Decision on Aboriginal Title: Delgamuukw (Vancouver: Greystone Books, 1998). See sections 25 and 35 of Canadian Charter of Rights and Freedoms and Constitution Act, 1982, which give special protection to peculiarly aboriginal rights while saving and affirming the ‘existing aboriginal treaty rights’ of Canada’s indigenous peoples. In 1990 by an Act of Parliament Canada split its Northwest Territories into two by creating the territory of Nunavut where the Inuit First Nations Peoples constitute 85 per cent of the Territory’s population. Perhaps a better illustration of indigenous self-government that is based on indigenous pre-colonial political tradition is exemplified by the 1998 Nisga’a Treaty, which recognized the inherent right of the Nisga’a to selfgovernment on the basis of their ancient and pre-colonial roots within an exclusive Nisga’a Territory (British Columbia). See Mabo v. Queensland (1992), 107 A.L.R. 1. For example, The Wik Peoples v. The State of Queensland (1996), 134 A.L.R. 637 in which the court declined to hold that pastoral leases extinguished native title; see also Peter Butt et al., Mabo, Wik and Native Title, 4th ed. (Sydney: Federation Press, 2001). See ‘Rights and Status,’ supra note 150 at 71, referring to the High Court of New Zealand in Huakina Development Trust v. Waikato Valley Authority, [1987] 2 N.Z.L.R. 188; see also Rt. Hon. Dame Siam Gnzm, ‘Maori and New Zealand Legal System,’ (2002) 76 Australian Law Journal 620 at 625.

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187 For instance, pressure from the Inter-American Commission on Human Rights influenced Brazil’s 1998 constitutional reforms, which focused on Indian rights. Since 1992 Brazil has been involved in often-checkered policy of demarcation and registration of Indian Land. 188 Indigenous peoples were actively involved in Colombia’s 1991 constitution (Gaceta Constitutional No. 127, October 1991), which is perhaps the most indigenous-friendly in that country’s history. 189 For detailed account of policy and legal developments in these countries, see Wiessner’s ‘tour du monde’ in ‘Rights and Status,’ supra note 150 at 61–93. For other specific developments involving the intervention of the Inter-American Court of Human Rights, see S. James Anaya, ‘The Awas Tingni Petition to the Inter-American Commission on Human Rights: Indigenous Land, Loggers and Government Neglect in Nicaragua,’ (1996) 9 St. Thomas Law Review 157. See generally S. James Anaya and S. Todd Cridder, ‘The Mayagna Indigenous Community of Nicaragua: Moving From Conflict to Convergence of Interests’ in Lakshman D. Guruswamy and Jeffrey McNeely, eds., Protection of Global Biodiversity (Durham, NC: Duke University Press, 1998) at 202–22. 190 Judicial decisions in both Norway and Finland have upheld the cultural rights of the Saami to reindeer herding and claims to grazing grounds. See Frank Orton and Hugh Beach, ‘A New Era for the Saami People of Sweden,’ in Cynthia P. Cohen, ed., Human Rights of Indigenous Peoples (Ardsley, NY: Transnational Publishers, 1998) 92 at 97 (referring to the Norwegian Supreme Court, Altervan Case, L. nr 8/1966 (1966) and the Swedish Supreme Court decision, The Taxed Mountain Case (‘Skttefja Ilsma’l’) NJA 1981 s. 1 (1981)); see also Hugh Beach, ‘The Saami of Lapland’ in Minority Rights Group ed., Polar Peoples: Self-Determination and Development (London: Minority Rights Publications, 1994). 191 India and China and the former Soviet Union have consistently declined to recognize the existence of indigenous peoples in those countries, a trend that is common in the rest of Asia. See Nicholas Tapp, ‘Minority Nationality in China: Policy and Practice,’ in Robert H. Barnes, Andrew Gray, and Benedict Kingsbury, eds., Indigenous Peoples of Asia (Ann Arbor, MI: Association of Asian Studies Monograph 48, 1995) at 195; Benedict Kingsbury, ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy,’ (1998) 92 American Journal of International Law 414; see also Barsh supra, note 163 at 375. 192 In that case, the Sapporo district court held that the action of the regional government in expropriating Ainu land to build a dam without taking into consideration the project’s cultural significance or impact on the Ainu was illegal.

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193 See ‘Rights and Status,’ supra note 150 at 89. 194 Even though indigeneity often coincides with minority claims, peculiarly indigenous claims go beyond minority rights. 195 See Joy K. Asiema and Francis D.P. Situma, ‘Indigenous Peoples and the Environment: The Case of the Pastorial Maasai of Kenya,’ (1994) 5 Colorado Journal of International Environmental Law and Policy 149. 196 In addition, a special government agency, the Niger Delta Development Commission, is now empowered by an Act of Parliament to address the plight of oil producing communities. Nigeria recently completed a political reform conference preparatory to the 2006 aborted constitutional review. The conference was almost stalemated by the issue of (oil) resource control championed by oil-producing Niger Delta states. 197 See Barsh, supra note 163 at 371. 198 On the inadequacy of human rights standards to indigenous peoples, see ibid. 199 It is important to establish what the state believes was/is the basis of its conduct before a determination can be made regarding the existence of customary international law. Practically, this is a very difficult task, as there is no consensus as to how this determination can be made. 200 Kingsbury adopts a different perspective on this inquiry. For him, the issue is ‘whether a new legal category of claims of indigenous peoples has been established, and if so, what is its justification, structure and significance?’ His approach, however, is not concerned with doctrinal analysis, or political assessment. See ‘Conceptual Structure,’ supra note 160 at 192. 201 See the following: Anaya, supra note 147; ‘Rights and Status,’ supra note 150: Wiessner, infra note 206; ‘Conceptual Structures,’ supra note 160. Contra, Torres, infra note 202. 202 See Raidza Torres, ‘The Rights of Indigenous Populations: The Emerging International Norm,’ (1991) 16 Yale Journal of International Law 127; see also ‘Revisiting the Emerging International Norm on Indigenous Rights: Autonomy as an Option,’ (2000) 25 Yale Journal of International Law 291. To a large degree, both moral and legal prescriptions are sources of obligations in contemporary international law. See Anaya, supra note 147 at 55–6. 203 ‘Conceptual Structures,’ supra note 160 at 240. 204 Anaya, supra note 147 at 53. 205 In ‘Rights and Status,’ supra note 150. 206 See Siegfried Wiessner, ‘Joining Control to Authority: The Hardened Indigenous Norm,’ (2000) Yale Journal of International Law 301 at 304–5. 207 See Ananya, supra note 147.

Notes to pages 75–8 249 3. International Law and Traditional Knowledge of Plant-Based Therapy (TKPT) 1 See Benedict Kingsbury, ‘Reconciling Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law,’ (2001) 34 New York University Journal of International Law and Politics 189 at 217 [Conceptual Structures]. 2 Ibid. See also Benedict Kingsbury, ‘Self-Determination and “Indigenous Peoples”’ (1992) 86 American Society of International Law Proceedings 383 at 392 [‘Self-Determination and Indigenous Peoples’]. See generally Christian Tomuschat, ed., The Modern Law of Self-determination (Dordrecht and Boston: M. Nijhoff Publishers, 1993). 3 See Erica-Irene Daes, ‘The Concepts of Self-Determination and Autonomy of Indigenous Peoples in the United Nations Declaration on the Rights of Indigenous Peoples’ (2001) 14 St. Thomas Law Review 259 at 261. 4 See also article 27 of the International Covenant on Civil and Political Rights, 16 Dec. 1966, reprinted in 999 United Nations Treaty Series [U.N.T.S.] 171; 6 International Legal Materials [I.L.M.] 368 (1967). 5 Daes, supra note 3, at 264. See also article 3 of the Draft Declaration on the Rights of Indigenous Peoples, which states, ‘[I]ndigenous Peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ 6 See Self-Determination and Indigenous Peoples, supra note 2 at 392–3. 7 See Miriam Latore Quinn, ‘Protection for Indigenous Knowledge: An International Law Analysis’ (2001) 14 St. Thomas Law Review 287 at 294 and n. 42. 8 Rosemary J. Coombe, ‘The Recognition of Indigenous Peoples’ and Community Traditional Knowledge in International Law’ (2001) 14 St. Thomas Law Review at 277. 9 Ibid. at 277–8. 10 G.A. Res 271A (III), UN GAOR, 3rd Sess., Supp. No. 13, UN Doc. A/810 (10 December 1948) 71. 11 Emphasis added. 12 Raidza Torres, ‘The Rights of Indigenous Populations: The Emerging International Norm,’ (1991) 16 Yale Journal of International Law 127 at 154, citing O’ Brien, ‘Federal Indian Policies and International Protection of Human Rights’ in Vine Deloria, American Indian Policy in the Twentieth Century (Norman: Oklahoma University Press, 1985) at 53. 13 See article 1 of International Covenant on Economic, Social and Cultural

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24 25 26 27

Notes to pages 78–81 Rights, reprinted in 6 I.L.M. 360 (1967); 993 U.N.T.S. 3; see also International Covenant on Civil and Political Rights, note 4. It provides: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group to enjoy their own culture, to profess and practice their own religion, or to use their own language.’ See ‘Conceptual Structures,’ supra note 1 at 204–5 See James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996) at 47; see also Traci McClellan, ‘The Role of International Law in Protecting the Traditional Knowledge and Plant Life of Indigenous Peoples,’ (2001) 19 Wisconsin International Law Journal 249 at 253. Article 27(1); article 27(2) gives indigenous peoples the right to establish their own educational institutions and facilities; article 28 supports the use of indigenous languages without compromising national language policies. Traditionally, the genesis of modern international environmental law is traced to the 1972 United Nations Conference on the Human Environment (UNCHE) held in Stockholm, Sweden. These include, the Agenda 21, the Rio Declaration on Environment 31 I.L.M. 874 (1992), the Non-Legally Binding Authoritative Statement of Principles for the Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (The Forest Principles) 31 I.L.M. 881 (1992), the Convention on Biological Diversity (CBD) 31 I.L.M. 818 (1992), the Framework Convention on Climate Change 31 I.L.M. 289 (1992) and the Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa 33 I.L.M. 1332 (1994). Emphasis added. Titled ‘Recognizing and Strengthening the Role of Indigenous Peoples and Their Communities.’ Chapter 26.2 The presence of hortatory provisions does not undermine the direct obligations of parties under the CBD, nor does it reduce the CBD to the status of a soft law. At best, the CBD represents a compromise between the hortatory character of soft law and normative obligations of hard law. Article 1. Emphasis added. Emphasis added. The COP is established by article 23 of the CBD.

Notes to pages 81–4 251 28 Buenos Aires, Argentina, 4–15 November 1996. 29 Apart from WIPO, the International Forum on Forest (IFF) is currently involved in an ongoing project at the CBD for effectuating the provisions of article 8(j). The IFF was represented at first meeting of the CBD Working Group on Article 8(j), Seville, Spain, 27–31 March 2000. 30 Emphasis added. All the emphasized words are indigenous epistemic genres in their own rights. Article 14 further amplifies the list by adding indigenous histories, languages, oral traditions, philosophies, writing systems, and literatures. See article 13, ibid. 31 Emphasis added. 32 See emphasis. 33 For instance, CBD’s famous article 8(j) incorporates the same ideals as the Draft’s article 29. 34 The term ‘folklore’ has been the subject of progressive interpretation. In its current usage, it includes virtually all aspects of traditional knowledge and practices. See Michael Blakeney, ‘Intellectual Property in the Dreamtime – Protecting Cultural Creativity of Indigenous Peoples’ (Research Seminar, Oxford Intellectual Property Research Centre, 9 November 1999), available at http://www.oiprc.ox.ac.uk/EJWP1199.html (accessed 14 November 2004). Folklore is also construed as ‘indigenous cultural and intellectual property,’ a term credited to Dr. Erica-Irene Daes, rapporteur of UNWGIP. See UNWGIP Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, E/CN.4/Sub.2/1993/28 (28 July 1993). 35 See WIPO Doc. BCP/CE/VI/16-INR/CE/V/14 para. 269 (9 February 1996); see also Michael Blakeney, ‘Protection of Indigenous Knowledge Under Intellectual Property,’ (2000) 20 European Intellectual Property Review at 251. 36 See Blakeney, ‘Intellectual Property in the Dreamtime,’ supra note 34. 37 See Siegfried Wiessner, ‘Indigenous Peoples,’ in Jutta Brunée et al., eds., Yearbook of International Environmental Law 10 (Oxford and New York: Oxford University Press, 2000) 193–216 at 214. 38 Blakeney, supra note 35 at 260. 39 For instance, the November 1999 WIPO’S first ever Forum on Traditional Knowledge. See Ibid. at 261. 40 See Brian Noble, ‘Circumventing Customary Transactions: Blackfoot Tipi Transfers and WIPO’s Search for the Facts of Traditional Knowledge Exchange,’ contribution to Monograph for Cambridge/Brunel Conference, ‘Property, Transactions, Creations: New Economic Relations in the Pacific,’ University of Cambridge, Cambridge, UK, 13–15 December 2001.

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41 See final report WIPO Fact-Finding Missions on Intellectual Property and Traditional Knowledge 1998–1999 (Geneva: April 2001) [FFM] at 6. 42 Ibid. at 7. 43 See chapter 6, p. 208. 44 See Coombe, supra note 8 at 282. 45 Ibid. at 284. 46 See Wiessner, supra note 37 at 214. 47 Ibid. 48 See Erica-Irene Daes, Draft Principles and Guidelines for the Protection of Heritage of Indigenous Peoples (UN Study Series 10, New York, Geneva, 1997 – as revised by the UN Seminar, February/March 2000 [Protection]. This document has passed through expert revisions and is currently awaiting the input of the Commission on Human Rights. See also ‘Report of the Seminar on the Draft Principles and Guidelines for the Protection of Heritage of Indigenous Peoples: Human Rights of Indigenous Peoples,’ UN Doc. E/CN.4/Sub.2/2000/26 (2000), reprinted in (2000) 13 St. Thomas Law Review at 405, Erica-Irene Daes, ‘Human Rights of Indigenous Peoples: Report of the Seminar on the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous People,’ (2000) 13 St. Thomas Law Review 391–404. 49 Daes, Protection, supra note 48 para. 24. 50 Siegfried Wiessner and Marie Battiste, ‘The 2000 Revision of the United Nations Draft Principles and Guidelines on the Protection of the Heritage of Indigenous Peoples,’ (2000) 13 St. Thomas Law Review 383 at 388. 51 In 1989 the General Assembly of the Organization of American States charged the Inter-American Commission on Human Rights with the preparation of a juridical instrument for the protection of the rights of indigenous peoples in the Americas. The first draft of the instrument was approved in 1995 at the 1278th session of the Inter-American Commission on Human Rights: OAS Doc. OEA/Ser/L/V/II.90, Doc. 9 rev. 1 (1995). It was then opened up for comments by indigenous peoples, organizations, individual experts and others. The 95th regular session of the InterAmerican Commission for Human Rights approved the proposed declaration: ‘Proposed American Declaration on the Rights of Indigenous Peoples,’ Inter-American CHR, 1333rd sess. OEA/Ser/L/V/II.95, Doc. 6, 26 February 1997, reprinted in (1997) 6 International Journal of Cultural Property 364. The Draft awaits passage by the General Assembly of the OAS. The most contentious issue between indigenous peoples and states remains the acceptable conception of the right to ‘self-government’ under article 15 of the Draft.

Notes to pages 86–8 253 52 In that regard, see preamble 3 on indigenous culture and ecology, articles 7 on the right to cultural integrity, 8 on philosophical outlook and language, 11 (1) and (4) on spiritual and religious freedom, 13 (3) on the right to environmental protection, 15 (1) on the right to self-government, 18 (1) and (4) on traditional forms of ownership and cultural survival, rights to land, territories, and resources. 53 Article 20 (1) and (2); see also 20 (3) and (4). 54 Emphasis added. 55 See section 20 (3). 56 See Blakeney, supra note 35 at 257. 57 Ibid. 58 Ibid. at 258. 59 Article 8 reads in part that ‘prevailing intellectual property systems reflect a conception and practice that is: colonialist, in that the instruments of the developed countries are imposed in order to appropriate the resources of indigenous peoples …’ 60 See article 9. 61 In July 1996 Cultural Survival Canada, in a study, identified twenty shared principles that have been pivotal in the declarations of indigenous peoples on their knowledge. See Cultural Survival Canada, ‘Towards Biodiversity Rights: The Biodiversity Convention and Indigenous Peoples,’ discussion paper, June 1996. 62 See V. Barber and A. La Vina, ‘Regulating Access to Genetic Resources: The Philippines Experience’ in John Mugabe et al., eds., Access to Genetic Resources: Strategies for Sharing Benefits (Nairobi: ACT Press, 1997), 115. 63 See Michael Blakeney, ‘Ethnobiological Knowledge and Intellectual Property Rights of Indigenous Peoples in Australia,’ in Michael Blakeney, ed., Intellectual Property Rights Aspect of Ethnobiology (London: Sweet and Maxwell, 1999) [‘Ethnobiological Knowledge’]. 64 See Olawale Ajai, ‘Access to Genetic Resources and Biotechnology Regulation in Nigeria,’ (1997) 6 Review of the European Community International Environmental Law 42. 65 See Graham Dutfield, Intellectual Property Rights, Trade and Biodiversity: Seeds and Plant Varieties (London: Earthscan, 2000) at 110–13. 66 See S. Laird and R. Wynberg, ‘Biodoversity Prospecting in South Africa: Developing Equitable Partnership,’ in Mugabe, supra note 62 at 143. 67 Others include Argentina, Belize, Bolivia, Cameroon, Colombia, Ecuador, Eritrea, Ethiopia, Fiji, Gambia, Guatemala, India, Indonesia, Kenya, Laos PDR, Lesotho, Malawi, Malaysia, Mexico, Mozambique, Namibia, Nigeria, Papua New Guinea, Peru, the Republic of Korea, Samoa, Seychelles,

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71 72

Notes to pages 88–9 Solomon Islands, Tanzania, Thailand, Turkey, the United States, Venezuela, Vietnam, Yemen, and Zimbabwe. See Kerry ten Kate and Sarah A. Laird, Commercial Use of Biodiversity: Access to Genetic Resources and Benefit-Sharing (London: Earthscan, 1999) at 4 [Commercial Use of Biodiversity]. See the following: Rodrigo Gámez et al., ‘Costa Rica Conservation Program and National Biodoversity Institute (INBio)’; Ana Sittenfeld and Rodrigo Gámez, ‘Biodiversity Prospecting and INBio,’ in Walter V. Reid et al., eds., Biodiversity Prospecting: Using Genetic Resources for Sustainable Development (New York: World Resources Institute, 1993) at 53 and 69 respectively; Michelle Powers, ‘The United Nations Framework Convention on Biological Diversity: Will Biodiversity Preservation Be Enhanced Through Its Provisions Concerning Biotechnology Intellectual Property Rights?’ (1993) 12 Wisconsin International Law Journal 103; L.H. Caperole, ‘The Merck/INBio Agreement: A Pharmaceutical Company Perspective,’ in Elaine Elisabetsky and Sarah A. Laird, eds., Medicinal Resources of the Tropical Rainforest: Biodiversity and Its Importance to Human Health (New York: Columbia University Press, 1996) at 137–41; Ana M. Sittenfeld and Annie Lovejoy, ‘Biodiversity Prospecting Frameworks: The INBio Experience in Costa Rica,’ in Lakshman D. Guruswamy and Jeffrey McNeely, eds., Protection of Global Biodiversity (Durham, NC: Duke University Press, 1998) at 223–43; see also Keith Nunes, ‘We Can Do … Better: Rights of Singular Peoples and the United Nations Draft Declaration on the “Rights of Indigenous Peoples,”’ (1995) 7 St. Thomas Law Review 521 at 526. For a discussion of the shaman initiative, the NCI, and the ICBG programs, see E.J. Asebey and J.D. Kempenaar, ‘Biodiversity Prospecting: Fulfilling the Mandate of the Biodiversity Convention,’ (1995) 28 Vanderbilt Journal of Transnational Law 703; see also Commercial Use of Biodiversity, supra note 67 at 300–12. For example, the National Cancer Institute initiative. It seems, however, that the Merck/INBio program was initiated almost at the same time as the CBD. However, the underlying concept of that agreement is premised on the CBD objectives. The Merck/INBio framework was primarily influenced by the Regional Central American initiatives on access to genetic resources from the early 1980s to early 1990s. The Merck INBio Agreement was entered into in 1991, just before the CBD was concluded. See Commercial Use of Biodiversity, supra note 67 at 33, 294–312. See Genetic Resources Action International (GRAIN), available at http:// www.GRAIN.org/brl (accessed 29 July 2005).

Notes to pages 90–1 255 73 See Commercial Use of Biodiversity, supra note 67 at 4; see also Dutfield, supra note 65 at 108–17. 74 See supra note 72. 75 See Darrel A. Posey and Graham Dutfield, Beyond Intellectual Property Rights: Towards Traditional Resource Right for Indigenous and Local Communities (Ottawa: IDRC, 1996) at 95; G. Nijar, ‘In Defence of Indigenous Knowledge and Biodiversity: A Conceptual Framework and Essential Elements of A Rights Regime’ (Penang, Malaysia: Third World Network, 1996); Anil K. Gupta, ‘Getting Creative Individuals and Communities their Due: Framework for Operationalizing Articles 8(j) and Article 10 (c),’ Paper submitted to the Secretariat of the Convention on Biological Diversity, available at http://www.sristi.org/papers/new/Getting creative individuals.rtf (accessed 12 September 2004); in Dutfield, supra note 65 at 108–24; Ikechi Mgbeoji, ‘Patents and Traditional Knowledge of the Uses of Plants: Is a Communal Patent Regime Part of the Solution to the Scourge of Bio Piracy?’ (2001) 9 Indiana Journal of Global Legal Studies 163; Crucible II Group, Seeding Solutions: Policy Options for Genetic Resources: People, Plants and Patents Revisited, vol. 1 (Ottawa: IDRC/IPGRI/DHF, 2000); Crucible II Group, Seeding Solutions: Options for National Laws Governing Control over Genetic Resources and Biological Innovations, vol. 2 (Ottawa: IDRC/IPGRI/DHF, 2001). 76 The WTO/GATT-TRIPS Agreement makes no direct provision for traditional knowledge, save for a stretched reading of its controversial article 27. Specifically, article 27.3(b) makes provision for the protection of plant variety rights ‘either by patents or by effective sui generis system or by a combination thereof.’ Issues surrounding the interpretation of this provision, as well as the amendment of article 27, are perhaps the most contentious under the TRIPS Agreement. Several attempts to review article 27 have been stalled. 77 Reprinted in 31 I.L.M. 818 (1992). 78 International Union for the Protection of New Varieties of Plants, as revised 19 March 1991 (Geneva: UPOV, 2001); available at http:// www.upov.int/en/publications/conventions/1991/content.htm (accessed 14 October 2004). 79 IUPGR is a non-legally-binding agreement for equitable dispersal of the benefits and burdens arising from dealings in plant genetic resources for food and agriculture. It is the brainchild of the FAO. The IUPGR principles are now entrenched in the 2001 FAO Treaty on Plant Genetic Resources for Food and Agriculture, FAO, available at http://www.fao.org/Legal/ default.htm (accessed 25 February 2004).

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80 See article 27 of the Universal Declaration of Human Rights, supra note 10; see also article 1 of the International Covenant on Economic, Social and Cultural Rights, and article 27 of the International Covenant on Civil and Political Rights, supra note 13. 81 Reprinted in 28 I.L.M. 1382 (1989). 82 Article 25 (1). 83 Article 25 (2). 84 Article 25 (3). 85 Article 25 (1). 86 Article 25 (3) (emphasis added). 87 Article 25 (4). 88 The United Nations Draft Declaration on the Rights of Indigenous Peoples, as agreed on by the UN Working Group on Indigenous Populations at its Eleventh Session, Geneva, July 1993, adopted by the Sub Commission on Prevention of Discrimination and Protection of Minorities by its resolution 1994/45, U.N. Doc. ECN 4.1995/2/1994 (26 August 1994), 56 at 105. 89 Emphasis added. 90 Article 23 (3). 91 Article 12 (4). 92 David Phillips defines it as ‘the existence and use of a wide range of sources of medical care, traditional and modern, static and evolving.’ See David Phillips, Health and Health Care in the Third World (New York: Youngman, 1990), 75; see also Obijiofor Aginam, ‘Salvaging the Global Neighbourhood: Multilateralism and Public Health Challenges in a Divided World’ (Ph.D. thesis, Law, University of British Columbia, 2002), 166 [‘Public Health Challenges’]; (Obijiofor Aginam) Global Health Governance: International Law and Public Health in a Dvided World (Toronto: University of Toronto Press, 2005) at 91 [Global Health Governance]. For further reading on medical pluralism, see John M. Janzen, The Quest for Therapy: Medical Pluralism in Lower Zaire (Berkeley: University of California Press, 1978); see also Horatio Fabrega, ‘A Complementary on African Systems of Medicine,’ in P. Stanley Yoda, ed., African Health and Healing Systems: Proceedings of a Symposium (Los Angeles: Crossroads, 1982). 93 Proposed American Declaration on the Rights of Indigenous Peoples, Inter-American Session Commission on Human Rights, 1333rd Session, OEA/Ser/L/V/II.95, Doc. 6 (26 February 1997), reprinted in (1997) 6 International Journal of Cultural Property 364.

Notes to pages 93–5 257 94 95 96 97 98

99 100

101

102

Article 12 (4). Article 12 (1). Article 12 (2). Article 20 (2). See Preamble to the Constitution of the World Heath Organization, as adopted by the International Health Conference, New York, 19–22 June 1946 (Official Record of the World Health Organization, No. 2, at 100). Relevant articles include 9, 21, and 22. See WHO Constitution, supra note 98. WHO’s definition tallies with the holistic conception of health in many non-Western indigenous and traditional communities. See Charles M. Good, Ethnomedical Systems in Africa: Patterns of Traditional Medicine in Rural and Urban Kenya (New York; London: The Guilford Press, 1987) at 15 [Ethnomedical Systems in Africa]. Until very recently, WHO had been isolated from developments in international law since 1945. According to Fidler, WHO deliberately limited itself to a ‘transnational Hippocratic society made up of physicians, medical scientists and public health experts’ while undermining the importance of legal strategy in the implementation of its mandate. See David P. Fidler, ‘International Law and Global Public Health,’ (1999) 48 University of Kansas Law Review 1 at 15. For many legal scholars, the WHO’s aloofness to law is also a result of the conservatism of the medical professional fraternity that dominated the body. Physicians and epidemiologists have relied on the success of the germ theory and have thus tended to treat matters of public health narrowly within that mechanistic and limited paradigm. Consequently, they undermine the truism that public health is a complex concept that traverses many segments of human life wherein the law, and indeed international law is a formidable ally for the advancement of public health goals. See ‘Public Health Challenges,’ supra note 92 at 131–3; see also, Allyn Taylor, ‘Making the World Health Organization Work: A Legal Framework for Universal Access to Conditions of Health,’ (1992) 18 American Journal of Law and Medicine 301; David P. Fidler, ‘The Future of the World Health Organization: The Role of International Law,’ (1998) 31 Vanderbilt Journal of International Law 1079; see generally Global Health Governance, supra note 92. See Ethnomedical Systems in Africa, supra note 100 at 22. In most nonWestern societies, traditional therapeutic systems are not officially recognized because of a colonial legacy that entrenches Western biomedical hegemony. Hence, traditional medicine is generally regarded as alterna-

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108 109 110 111 112 113

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Notes to pages 95–9 tive or complementary to official biomedicine, notwithstanding that more than 80 per cent of the world’s peoples depend on it for their health care needs. See Yutaka Arai-Takahashi, ‘The Role of International Health Law and the WHO in the Regulation of Public Health in Law,’ in Robyn Martin and Linda Johnson, eds., Law and the Public Dimension of Health (London: Cavendish Publishing, 2001), 113. See Halfdan Mahler in the foreword to Robert H. Bannerman, John Burton, and Ch’en Wen-Chieh, eds., Traditional Medicine and Health Care Coverage: A Reader for Health Administrators and Practitioners (Geneva: World Health Organization, 1983) at 7 [Traditional Medicine and Health Care Coverage]. See WHO, Traditional Medicine Strategy, 2002–2005 (Geneva: WHO, 2002) at 12 [Traditional Medicine Strategy]. These statistics represent the trend on the availability of allopathic and traditional medicine practitioners in most of the non-industrialized countries Ibid. at 2. See Jan Stepan, ‘Legal Aspects: Patterns of Legislation Concerning Traditional Medicine,’ in Traditional Medicine and Health Care Coverage, supra note 104, 290 at 307. Ethnomedical System in Africa, supra note 100 at 11. See Traditional Medicine Strategy, supra note 105 at 15. Mahler, supra note 104 at 7. See WHO Doc: WHO/TRM/91.4, annex 11. See also WHO Technical Report Series, No. 863, (1996) annex 8. See infra notes 116 and 138. Ibid. See Timothy R. Tomlinson and Olayiwola Akerele, eds., Medicinal Plants: Their Role in Health and Biodiversity (Philadelphia: University of Pennsylvania Press, 1998) at 205–211 [Medicinal Plants]. See WHO, ‘General Guidelines for Methodologies on Research and Evaluation of Traditional Medicine’ (Geneva: WHO, 2000) (WHO Doc. WHO/EDM/TRM/200.1). See Cecil G. Helman, Culture, Health and Illness (Oxford: Butterworth, 2000) at 9 [Helman]. See the WHO Guidelines for the Assessment of Herbal Medicines, WHO document WHO/TRM/91.4, annex 11. Traditional Medicine Strategy, supra note 105 at 5. See supra note 105. For a list of the designated collaborating institutions and their locations, see Traditional Medicine Strategy, supra note 105 at 41–2, annex 1.

Notes to pages 99–101 259 120 See ibid. at 15. 121 See the WHO, International Health Regulations, 3rd annotated ed. (Geneva: WHO, 1983). 122 See Public Health Challenges, supra note 92 at 135; see also Arai-Takahashi, supra note 103 at 127–37. 123 I.e., cholera, plague, and yellow fever; see articles 2–13 of the IHR, supra note 121. 124 See Boris Velimirovic, ‘Do We Still Need International Health Regulation?’ (1976) 133 Journal of Infectious Disease 478–82: arguing that the IHR was more observed in breach and that since such breaches attract virtually no consequences, the relevance of IHR is doubtful. 125 See ‘World Health Assembly Adopts Historic Tobacco Control Pact,’ (press release) available at http://www.who.int/mediacentre/releases/ 2003/prwha1/en/ (accessed 22 May 2003). The FCTC was unanimously adopted in Switzerland by the WHA and now requires the 192 WHO member states’ ratification. The treaty entered into force on 27 February 2005. 126 ‘Public Health Challenges,’ supra note 92 at 149. 127 See F. Staugard, Traditional Medicine in Botswana (Gaborone: Ipelegang Publishers, 1985), 5. 128 For accounts of early legislative developments relating to the accommodation or recognition of ‘unorthodox’ therapeutic practices in Mali, Upper Volta (Burkina Faso), Ghana, Uganda, Hong Kong, Sierra Leone, South Africa, Lesotho, Swaziland, India, Sri Lanka, Pakistan, Bangladesh, Burma, Thailand, China, Koreas, and others, see Stepan, supra note 107 at 295–308. 129 Ibid. at 298. 130 See Michael A. Attisso, ‘Pharmacology and Psychotherapy,’ in Traditional Medicine and Health Care Coverage, supra note 104, 194 at 196. 131 See Traditional Medicine Strategy, supra note 105 at 2. 132 Ethnomedical Systems in Africa, supra note 100 at 7. 133 Ibid.; see also Anne Underwood and Melinda Liu, ‘Learning from China: Ancient Cures from the Middle Kingdom Have Won Converts in the West,’ Newsweek (12 December 2002), 54; see also, ‘The Science of Alternative Medicine: Chinese Medicine Homeopathy in European Depression Treatments,’ ibid. 134 See Stepan, supra note 107 at 291 and 298. In the United States, the United Kingdom, Canada, and Germany, there is some degree of freedom to practice other forms of medicine within stipulated conditions. Patients’ right of privacy and freedom of choice especially relating to method of

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143 144 145 146 147 148

Notes to pages 102–4 treatment are recognized. For instance, in the U.S. case of Andrews v. Ballard, 498 F. Supp 1038 (1980), a Federal District Court sitting in Texas held that the right to procure medical treatment falls within the purview of the fundamental right of privacy. In terms of policy, however, only 25 of the WHO’s 191 members have developed a national policy on traditional medicine/alternative or complementary/alternative medicine. See Traditional Medicine Strategy, supra note 105 at 20. Ibid. at 12. Ibid. Ibid at 31, referring to the WHO Guidelines on Basic Training and Safety in Acupuncture, and Guidelines on Clinical Research on Acupuncture. Ibid. at 30; see also The WHO, Regulatory Situation of Herbal Medicines: A World Review (Geneva: World Health Organization, 1998); WHO/TRM/ 98.1. At the early stages of colonialism, a policy of outright ban and incrimination against traditional medical practices and their practitioners was enforced in various countries of Africa and the Americas. In pursuing this policy, the colonial powers forged an alliance with the Christian missionaries by negatively branding traditional therapeutic practices and personnel, often dismissing the latter as charlatans or quacks, and the former as unscientific, fetish, diabolic, and idolatrous. See Traditional Medicine and Health Care Coverage, supra note 104 at 318–27. Stepan, supra note 107, 290 at 291. In early-twentieth-century China (1929), the Kuomintang-led central government passed a bill banning traditional medicine in order to replace it with official biomedicine. However, Wang Pei writes that ‘they did not succeed in banning and replacing it. In the first place, people in the vast rural areas and both the common people and the upper class in many cities earnestly believed in traditional medicine.’ See Wang Pei, ‘Traditional Chinese Medicine,’ in Traditional Medicine and Health Care Coverage, supra note 104, 68 at 71. See ibid. at 72; see also Geoffrey Cowley, ‘Alternative Medicine: Now, “Integrative” Care,’ Newsweek, 12 December 2002 at 49. See Traditional Medicine Strategy, supra note 105 at 32. See Traditional Medicine and Health Care Coverage, supra note 104 at 322; Ethnomedical Systems in Africa, supra note 100 at 32. See Traditional Medicine Strategy, supra note 105 at 32 FFM, supra note 41 at 154–5. See Robert Desjarlais et al., World Mental Health: Problems and Priorities

Notes to pages 104–7

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151 152

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155 156 157 158 159

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in Low-Income Countries (New York: Oxford University Press, 1995), 61; see also interview by Philip Singer with T.A. Lambo, M.D., titled ‘Traditional Healing and Medical/Psychiatric Mafia,’ in P. Singer, ed., New Science or New Colonialism? Essays in Critique of Medical Anthropology (New York: Conch Magazine Publishers, 1977) 242–54; Raymond Prince, ‘The Psychiatrist and the Folk Healer: Interface and Partnership,’ in George G. Meyer and Kenneth G. Cull, eds., Folk Medicine and Herbal Healing (Springfield, IL: Charles C. Thomas, 1981) 57 at 62–5 [Folk Medicine]. See Traditional Medicine Strategy, supra note 105 at 32. See Chukwuma Muanya, ‘University of Lagos Begins Diploma Course in Herbal Medicine,’ The Guardian (Nigeria), 30 October 2003, available at http://www.odili.net/news/source/2003/oct/30/10.html (accessed 30 October 2003); see also ‘Diploma in Herbal Medicine,’ available at http://www.blackherbals.com/diploma_in_Herbal_Medicine.htm (accessed 15 November 2003). See FFM, supra note 41 at 89. See Ethnomedical Systems in Africa, supra note 100 at 303; see also Ann Beck, Medicine, Tradition and Development in Kenya and Tanzania, 1920–1970 (Waltham, MA: Crossroads, 1981). They include Burkina Faso, Côte d’Ivoire, Democratic Republic of the Congo, Equatorial Guinea, Ethiopia, Ghana, Lesotho, Madagascar, Mali, Mozambique, Namibia, Niger, Nigeria, Sao Tome and Principe, Zambia, and Zimbabwe. See Traditional Medicine Strategy, supra note 105 at 17. Ibid. The 2004 South African Traditional Health Practitioners Acts creates a council that will oversee the licensing and regulation of traditional healers. Traditional Medicine Strategy, supra note 105 at 9. Supra note 104 at 291. See Traditional Medicine Strategy, supra note 105 at 30. Ibid. at 33.The categories include ‘pharmacology; posology; contraindications; and precautions against potential adverse reactions.’ This publication resulted from collaboration between the WHO and many of its member states. It covers information from fifty countries regarding the regulation of herbal medicine. See supra note 138. See the World Health Organization, The Legal Status of Traditional and Complementary/Alternative Medicine: A Worldwide Review (Geneva: WHO, 2001), also available as WHO Doc. WHO/EDM/TRM/200.2. This document summarizes the legal status of mainstream practices in traditional or alternative medicine in a total of 123 countries. For a list of other WHO

262

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162

163 164

165

166

167

Notes to pages 107–10 publications that highlight the WHO’s policy on traditional medicine, available at http://www.who.int/medicines/library/trm/ trmmaterial.shtml (accessed 14 October 2004). Commissioned by the South Centre (with funding supported of the Rockefeller Foundation) and authored by Carlos M. Correa; available at http://www.southcentre.org/publications/traditionalmedicine/toc.htm (accessed 16 September 2004). There is virtually no state that falls into this category, the purpose of which is perhaps to serve as a historical reminder of what was. Currently, from the global North to the global South, it is hard to identify any state that has completely shut out traditional or complementary alternative medicine from its health care system or outside the reach of its citizenry. Even if any state was so inclined, constitutional considerations relating to individual liberty, freedom of choice, and the right to privacy are formidable obstacles to any such policy. This category generally reflects the present situation in Western industrialized countries. The majority of developing countries of Africa, the Americas, and Asia fall within this category. However, most of these states do not necessarily recognize traditional medicine as the official medical system, even though traditional medicine is patronized by over 80 per cent of the population. Many Southeast Asian countries, including China, belong to this category. However, only three of them are recognized as having an integrative system. See Traditional Medicine Strategy, supra note 105 at 9. See Irwin Press, ‘Problems in the Definition and Classification of Medical Systems’ (1980) 14B Social Science and Medicine 45 at 47; see also Ethnomedical Systems in Africa, supra note 100 at 23. See Collins O. Airhihenbuwa, Health and Culture: Beyond the Western Paradigm (California: Sage Publications, 1995) at 57.

4. The Sociocultural Context of Traditional Knowledge of Plant-Based therapy (TKPT) 1 See Patrick A. Twumasi, ‘Aging, Illness, and Traditional Medicine in Ghana,’ in Wilburn H. Watson, ed., Black Folk Medicine: The Therapeutic Significance of Faith and Trust (New Brunswick, NJ: Transaction Books, 1984) 17 at 22; see also Charles M. Good, Ethnomedical Systems in Africa: Patterns of Traditional Medicine in Rural and Urban Kenya (New York and London: Guilford Press, 1987) at 5 [Ethnomedical Systems in Africa];

Notes to pages 112–14 263

2

3

4 5

6

7

8 9

10

11

Cecil G. Helman, Culture, Health and Illness (Oxford: Butterworth, 2000) at 83 [Helman]. Charles Good observes that among medical anthropologists and other social and behavioural scientists, there is recognition of the need to distinguish between disease and illness, which are perceived as two elements of sickness. While disease is a reference to the debilitation of biological and or physiological processes, illness emphasizes the psychosocial interpretation and meaning of perceived disease. See Ethnomedical Systems in Africa, supra note 1 at 18; see also Arthur Kleinman, Patients and Healers in the Context of Culture (Berkeley: University of California Press, 1980) at 72, Collins O. Airhihenbuwa, Health and Culture: Beyond the Western Paradigm (Thousand Oaks, CA: Sage Publications, 1995) [Airhihenbuwa]. Ethnomedical Systems in Africa, supra note 1 at 13; see generally Chidi Oguamanam, ‘Between Reality and Rhetoric: The Epistemic Schism in the Recognition of Traditional Medicine in International Law,’ (2003) 16 St. Thomas Law Review 59–108 [Oguamanam]. See Helman, supra note 1 at 82. See Ethnomedical Systems in Africa, supra note 1 at 13 (crediting the claim to a former deputy director of the WHO, Dr. T.A. Lambo; see also P. Singer, ed., New Science or New Colonialism? Essays in Critique of Medical Anthropology (New York: Conch Magazine Publishers, 1977) at 246. See Mamadou Koumare, ‘Traditional Medicine and Psychiatry in Africa [Section I],’ in Robert H. Bannerman, John Burton and Ch’en Wen-Chieh, eds., Traditional Medicine and Health Care Coverage: A Reader for Health Administrators and Practitioners (Geneva: World Health Organization, 1983) at 25 [Traditional Medicine and Health Care Coverage]. See Kenneth R. Pelletier, ‘Psychosomatic Approaches to Healing,’ in George G. Meyer and Kenneth G. Cull, eds., Folk Medicine and Herbal Healing (Springfield: IL: Charles C. Thomas, 1981) 30 at 31 [Folk Medicine] Helman, supra note 1 at 81–2. Bonnie B. O’Connor and David J. Hufford, ‘Understanding Folk Medicine,’ in Erika Brady, ed., Healing Logics: Culture and Medicine in Modern Belief Systems (Logan: Utah State University Press, 2001) 13 at 19 [Healing Logics]. David Phillips, however, dismisses the holistic construct of traditional medicine as a stereotyping that does not hold true in some cases and is capable of perpetuating a false image. See David Phillips, Health and Health Care in the Third World (New York: Youngman, 1990) at 81. George Murdock makes a case for the use of theories of ‘illness’ instead of theories of ‘disease.’ According to him, the word ‘disease’ has too narrow

264

12 13 14

15 16 17 18 19 20

21

22 23

Notes to pages 114–16 a connotation, suggesting primarily the communicable virus-borne or bacteria-borne ailments’ whereas, ‘“illness” serves far better to connote the wider range of phenomena …’ See George P. Murdock, Theories of Illness: A World Survey (Pittsburgh: University of Pittsburgh Press, 1980) at 6 [Theories of Illness]; see also Helman, supra note 1 at 83, Ethnomedical Systems in Africa, supra note 1. See Theories of Illness, supra note 11 at 9. Ibid., emphasis added. Theories of Illness, supra note 11 at 9. Examples of stress include overexertion, prolonged hunger, thirst, debilitating extremes of heat or cold, worry, fear, or the emotional disturbances now classified within the province of modern psychiatry. Ibid.at 17. See Helman, supra note 1 at 94. See Chinua Achebe, Things Fall Apart (New York: Anchor Books, 1994) at 18. Theories of Illness, supra note 11 at 19. Ibid. at 21; see also Oguamanam, supra note 3 at 103 and n. 200. Helman, supra note 1 at 94. For a historical-cum-trans-religious and cultural discourse of the concept of the ‘evil eye,’ see ‘The Evil Eye in Its Folk Medical Aspects: A Survey of North America,’ reproduced in Wayland Hand, Magical Medicine: The Folkloric Component of Medicine in Folk Belief, Custom, and Ritual of the Peoples of Europe and America – Selected Essays of Wayland D. Hand (Berkeley and Los Angeles: University of California Press, 1980) at 239–49. Helman, supra note 1 at 94–3. The use and effect of witchcraft across cultures is a subject of controversy. For instance, although witchcraft is wont to be identified with so-called backward or indigenous cultures, it is a universal phenomenon. Belief in witchcraft was common in Europe in the Middle Ages. In sixteenth- and seventeenth century England, thousands of women were condemned as witches; see also Airhihenbuwa, supra note 2 at 56; see generally William H.S. Aubery, The Natural and Domestic History of England vol. 2 (London, 1870–88), at 296; Frederick George Lee, Glimpses of the Supernatural (London, 1875). See generally Theories of Illness, supra note 11. See Zoe D. Oakleaf, ‘Ozark Mountain and European White Witches,’ in Wilburn H. Watson, ed., Black Folk Medicine: The Therapeutic Significance of Faith and Trust (New Brunswick, NJ: Transaction Books, 1984) at 71–97 [Black Folk Medicine]; see generally Vance Randolph, Ozark Magic and Folklore (New York: Dover, 1964).

Notes to pages 117–18 265 24 See Hakim Mohammed Said, ‘The Unani System of Health and Medicare,’ in Traditional Medicine and Health Care Coverage, supra note 6, 61 at 65. 25 See Healing Logics, supra note 9 at 7. 26 For instance, empirical medicine such as various forms of surgery, including cataract surgery, extraction of bullets and shrapnel and the cauterization of wounds were aspects of African medical experience from antiquity. See Cheikh Anta Diop, Precolonial Black Africa: A Comparative Study of the Political and Social System of Europe and Black Africa, from Antiquity to the Formation of Modern States, trans. Harold J. Salemson (Brooklyn, NY: Lawrence Hill Books, 1987), at 205–6; see also Airhihnebuwa, supra note 2. 27 See Theories of Illness, supra note 11 at 9; see also Oguamanam, supra note 3 at 105 and n. 211. 28 See Ethnomedical Systems in Africa, supra note 1 at 15–16; see also Lola Romanicci-Ross, ‘Melanesian Medicine: Beyond Culture and Method,’ in Peter Morley and Roy Wallis, eds., Culture and Curing: Anthropological Perspectives on Traditional Beliefs and Practices (London: Peter Owen, 1978) 115 at 119 [Culture and Curing]. 29 See Timothy R. Tomlinson, ‘Promoting the Worldwide Use of Medicinal Plants,’ in Timothy R. Tomlinson and Olayiwola Akerele, eds., Medicinal Plants: Their Role in Health and Biodiversity (Philadelphia: University of Pennsylvania Press, 1998) at viii [Medicinal Plants]. 30 See Stanley Krippner and Benjamin Colodzin, ‘Folk Healing and Herbal Medicine: An Overview,’ in Folk Medicine, supra note 7 at 16–17. 31 For a biblical account of cultural uses of plants among the Hebrews, see Richard Lucas, Nature’s Medicines: The Folklore, Romance, and Value of Herbal Remedies (West Nyack, NY: Parke Publishing, 1966) [Value of Herbal Remedies]; see also Richard L. Rubin, ‘Healing with Plants in Jewish Culture,’ in Folk Medicine, supra note 7 at 167–75. 32 Egyptian Ebers Papyrus, written about 1550 B.C. is like the Chinese Pen Ts’ao. It documents, in consolidated form, the earliest medical knowledge of ancient Egypt, which is substantially based on medicinal plants, notably aloes, castor oil, mandragora, senna, and opium. See Value of Herbal Remedies, supra note 31 at 13; see also Rubin ibid. at 167–8. 33 See Folk Medicine, supra note 7 at 15; see also William Mckinley Klein Jr., ‘The Role of Botanical Gardens and Arboreta in Traditional Medicine’ in Medicinal Plants, supra note 29 at 120–1. 34 See Krippner and Colodzin, supra note 30 at 16–17. 35 The term ‘herbology’ refers to the combination of the Latin word herba or grass and the Greek logos, description, which literally translates as ‘description of grass.’ See Krippner and Colodzin, ibid., at 15.

266

Notes to pages 118–20

36 See Value of Herbal Remedies, supra note 31; see also Krippner and Colodzin, ibid., at 13–27. 37 See generally, Marie Battiste and James S.Y. Henderson, Protecting Indigenous Knowledge and Heritage: A Global Challenge (Saskatoon: Purich Publishers, 2000); also Gregory Cajete, Native Science: Natural Law of Interdependence (Santa Fe, NM: Clear Light Publishers, 1999); Marie Battiste, ed., Reclaiming Indigenous Voice and Vision (Vancouver: UBC Press, 2000). 38 See Krippner and Colodzin, supra note 30, 13 at 14; Achebe, supra note 17 at 85–6. 39 See P.N.V. Kurup, ‘Ayurvedic Medicine,’ in Traditional Medicine and Health Care Coverage, supra note 6, 50 at 54. 40 See WHO, Traditional Medicine Strategy 2002–2005 (Geneva: WHO, 2002) at 13 [Traditional Medicine Strategy]; see also Obijiofor Aginam, ‘From the Core to the Peripheries: Multilateral Governance of Malaria in a MultiCultural World,’ (2002) 3 Chicago Journal of International Law 87–103. 41 See Norman R. Farnsworth, ‘Screening Plants for New Medicine,’ in Edward O. Wilson, ed., Biodiversity (Washington, DC: National Academy Press, 1988) at 91; see also Farnsworth, ‘Safety, Efficacy and the Use of Medicinal Plants’ in Medicinal Plants, supra note 110 at 29. 42 Krippner and Colodzin, supra note 30 at 13. 43 See Value of Herbal Remedies, supra note 31 at 22. 44 Ibid. See Jeremiah 8:22; 46:11. 45 Value of Herbal Remedies, supra note 31 at 22; see also 2 Kings 20:7. 46 Value of Herbal Remedies, supra note 31 at 23; see also Isaiah 55:13. 47 Value of Herbal Remedies, supra note 31 at 24; see also Mark 14:3. 48 Value of Herbal Remedies, supra note 31 at 25. 49 See Exodus 12:22; see also John 19:29. 50 See Value of Herbal Remedies, supra note 31, 195 at 25. 51 See P.N.V. Kurup, ‘Medical Astrology,’ in Traditional Medicine and Health Care Coverage, supra note 6 at 64. 52 Ibid. 53 See Said, supra note 24 at 63. 54 From Ayurveda, meaning ‘the science of life.’ 55 See Kurup, supra note 39 at 50. 56 Ibid. 57 Vedas are books of wisdom containing scattered references to health and diseases. Ayurveda, writes Kurup, originated from Atharvaveda, which has as many as 114 hymns that describe the treatment of disease. The vedas that deal substantially with treatment of disease are the Rig and the Atharvaveda. Ibid.

Notes to pages 121–4

267

58 See Ikechi Mgbeoji, ‘Patents and Plants: Re-Thinking the Role of International Law in Relation to the Appropriation of Traditional Knowledge of Uses of Plants’ (J.S.D. thesis, Dalhousie University, 2001), at 134 [‘Patents and Plants’]. See generally Ikechi Mgbeoji, Global Biopiracy: Patents, Plants, and Indigenous Knowledge (Vancouver: UBC Press, 2005). 59 See Peter Tompkins and Christopher Bird, The Secret Life of Plants (New York: Avon Books, 1973) at xv [Secret Life of Plants]. 60 See Kurup, supra note 51 at 59. 61 Wang Pei, ‘Traditional Chinese Medicine,’ in Traditional Medicine and Health Care Coverage, supra note 6 at 68. 62 Ibid. 63 Ibid. at 69. 64 Ibid. 65 Ibid; see also Barbara and Rock Avery, ‘Oriental Healing: The Ying-Yang Concept,’ in Folk Medicine, supra note 7 at 139–65. 66 See William McKinley Klein Jr., supra note 33, 121 at 122. 67 For perspectives on acupuncture and moxibustion, see Wei Ru-Shi, ‘Acupuncture and Moxibustion: Theory and Practice,’ in Traditional Medicine and Health Care Coverage, supra note 6 at 76–81; see also Robert H. Bannerman, ‘Research in Acupuncture,’ in Traditional Medicine and Health Care Coverage, supra note 6 at 82–85. 68 See Theories of Illness, supra note 11 at 16. Contra Geoffrey Cowley, ‘Alternative Medicine: Now, “Integrative” Care,’ Newsweek, 12 December 2002 at 49. 69 See Wang Pei, supra note 61 at 70–3. 70 See Virgil J. Vogel, ‘American Indian Influence on the American Pharmacopoeia,’ in Folk Medicine, supra note 7 at 103–19. 71 See Value of Herbal Remedies, supra note 31 at 132. 72 See The Secret Life of Plants, supra note 59 at xv. 73 See Battiste and Henderson, supra note 37 at 43. 74 See Virgil Vogel, American Indian Medicine (Norman: University of Oklahoma Press, 1970); see also Virgil J. Vogel, ‘American Indian Foods Used as Medicine,’ in W. Hand, ed., American Folk Medicine: A Symposium (Berkeley: University of California Press, 1976). 75 See Vogel, supra note 70 at 103. 76 Ibid.; see also Peter Morley, ‘Culture and the Cognitive World of Traditional Medical Beliefs: Some Preliminary Considerations,’ in Culture and Curing, supra note 28 at 5. 77 See Carmel Goldwater, ‘Traditional Medicine in Latin America,’ in Traditional Medicine and Health Care Coverage, supra note 6 at 37.

268 78 79 80 81 82 83 84

85 86 87 88

89 90 91 92 93

94 95

96

Notes to pages 124–7 Goldwater, ibid. at 38. Ibid. See Kurup, supra note 39 at 54. See Goldwater, supra note 77 at 43. Ibid. See Koumare, supra note 6 at 25. See J.S. Mbiti, African Religions and Philosophy (London: Heineman, 1969) at 169; see also Victor C. Uchendu, The Igbo of Southeast Nigeria (New York: Holt, Rinehart and Winston, 1965) at 13; Ethnomedical Systems in Africa, supra note 1 at 14–15. See ‘Patents and Plants,’ supra note 58 at 136; see also Romanucci-Ross, supra note 28 at 133. See Ismail H. Abdalla, Islam, Medicine and Practitioners in Northern Nigeria (New York: Edwin Mellen, 1997) at 121 [Abdalla]. Ibid. This would include prayer, taking of medicine, and abstinence from sex and other pleasures. See Hand, ‘“Passing Through”: Folk Medical Magic and Symbolism’ in Selected Essays supra note 20 at 133–85, highlighting the universal worship of trees and their roles in traditional therapeutic rituals. See Una Maclean, ‘Choices of Treatment Among the Yoruba,’ in Culture and Curing, supra note 28 at 152 and 164. See Value of Herbal Remedies, supra note 31 at 36. See Koumare, supra note 6 at 32. See Maclean, supra note 89 at 165; see also G.E. Simpson, Yoruba Medicine and Religion in Ibadan (Ibadan, Nigeria: Ibadan University Press, 1980). See John L. Maddox, The Medicine Man: A Sociological Study of the Character and Evolution of Shamanism (New York: Macmillan, 1977) at 91–6 [The Medicine Man]. See George Meyer, ‘The Art of Healing: Folk Medicine, Religion and Science’ in Folk Medicine, supra note 7 at 9. Una Maclean observes that ‘[t]the distinction between these specialists is not absolute, however, since some babalawo (diviners) recommend the collection and preparation of herbal constituents for their prescriptions whilst certain herbalists practice divination procedures.’ See supra note 89 at 155. The WHO favours the use of the term ‘traditional birth attendant,’ which it defines as ‘a person who assists the mother at childbirth and who initially acquired her skills delivering babies by herself or by working with other traditional birth attendants.’ See Sheila Cosminsky, ‘Traditional Midwifery and Contraception,’ in Traditional Medicine and Health Care Coverage, supra note 6 at 142.

Notes to pages 127–31 269 97 ‘In African traditional medicine the term “specialist” refers to a person dealing with a limited number of pathological conditions and not just with one organ or system of the human body, although it is possible to find traditional healers who confine themselves to fractures, cataract, or mental disorders.’ See Koumare, supra note 6 at 28. 98 See Maclean, supra note 89 at 162; see also Abdalla, supra note 86 at 130. 99 The term ‘medicine man’ is unacceptable in several quarters chiefly because it is not only suggestive of gender bias but it also carries exoticist and colonial connotations. It can, however, be argued that the term is gender neutral, just as references to Traditional Birth Attendants (TBAs) are usually female, even though there are some male TBAs. See, for example, note 96, supra. 100 This is a reference to the underlying distinction between traditional healer and the Western physician. Lucas writes, ‘[M]ost of the world’s inhabitants … those who prefer prayer to penicillin, find themselves in much closer agreement with the medicine man than with the man of medicine.’ See Value of Herbal Remedies, supra note 31 at xiii. 101 The Medicine Man, supra note 93 at 25. 102 See Kurup, supra note 39 at 55. 103 See Maclean, supra note 89 at 163. 104 See Sheila Cominsky, ‘Traditional Midwifery and Contraception,’ in Traditional Medicine and Health Care Coverage, supra note 6 at 146. 105 See Raymond Prince, ‘Psychiatrist and the Folk Healer: Interface and Partnership,’ in Folk Medicine, supra note 7, 57 at 61. 106 See Helman, supra note 1 at 106. 107 See Robert L. Bergman, ‘The Physician and the Folk Healer,’ in Folk Medicine, supra note 7, 84 at 92–3. 108 The Medicine Man, supra note 93 at 95. 109 The physician’s white coat, stethoscope, prescription pad, and so on are ritual symbols capable of inducing a placebo effect on the patient. See Helman, supra note 1 at 138. Helman (157) describes the stethoscope and the white coat as potent symbols of medical science deployed in rituals of healing ‘in the same way that non-Western healers employ certain religious symbols or artifacts (such as certain plants, talismans, divination stones, holy texts and such like) that symbolize powerful healing forces (such as gods, spirits or ancestors).’ 110 The Medicine Man, supra note 93 at 101. 111 See Goldwater, supra note 77 at 43. 112 The Medicine Man, supra note 93 at 100. 113 Ibid. at 93. 114 See Peter A.G.M. De Smet, Herbs, Health and Healers: Africa As Ethno-

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116

117 118 119 120 121 122 123

124 125

126 127 128 129

130 131 132 133 134

135 136

Notes to pages 132–5 pharmacological Treasury (Berg en Dal, Netherlands: Africa Museum, 1999) 11. For example, community shrines, sacred groves, ancestral burial sites, community riverbanks, the base of a sacred tree, the village market square, or a road intersection. Among the Melanesian Sori indigenous peoples, the ritual for violation of a totemic taboo is usually performed at night. See Romanucci-Ross, supra note 28 at 123. The same in true of Navajo singing rituals. Bergman, supra note 107 at 90. Ibid. at 85. Ibid. at 90–1. Ibid. at 91. See O’ Connor and Hufford, supra note 9 at 32. See George M. Foster, ‘Introduction to Ethnomedicine,’ in Traditional Medicine and Health Care Coverage, supra note 6 at 18. See Carol Laderman and Marina Roseman, eds., The Performance of Healing (New York and London: Routledge, 1996) [Performance of Healing] at 4. Ibid. See Henry L. Roth, Natives of Sarawak and British Borneo (London and New York: Truslove and Hanson, 1893–6); see also The Medicine Man, supra note 93 at 92. See Performance of Healing, supra note 123 at 2. See Paul Stoller, ‘Sounds and Things: Pulsation and Power in Songhay,’ in ibid. at 165. See Maclean, supra note 89 at 163. Ibid. at 162; see generally Piero Coppo, ‘Traditional Medicine and Psychiatry [Section II],’ in Traditional Medicine and Health Care Coverage, supra note 6 at 33. See Krippner and Colodzin, supra note 30 at 16. Ibid. See Gordon R. Wasson, Divine Mushroom of Immortality (New York: Harcourt Brace Jovanovich, 1969). Krippner and Colodzin, supra note 30 at 23. See 1 Cor. 14; Rom. 8:26; see also Acts 2:4–9; see generally Felicitas D. Goodman, Speaking in Tongues: A Cross-cultural Study of Glossolalia (Chicago: University of Chicago Press, 1972). See Achebe, supra note 17 at 76–85. See Raymond Prince, ‘The Psychiatrist and the Folk Healer: Interface and Partnership,’ in Folk Medicine, supra note 7 at 60.

Notes to pages 135–8

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137 See Hedwig Schleiffer, ed., Sacred Narcotic Plants of the New World Indians: An Anthology of Texts from the Sixteenth Century to Date (New York: Hafner Press, 1973); Hedwig Schleiffer, Narcotic Plants of the Old World (Monticello, NY: Lubrecht and Cramer, 1979). 138 In Iquitos, Peru, for instance, the folk healers or ayahuasquerors, by imbibing ayahuasca in a healing ritual, undergo a visionary experience arising from the drug consumption. That experience is said to help them identify the cause of a patient’s illness and how it can be tackled. See Helman, supra note 1 at 154. 139 See Krippner and Colodzin, supra note 30 at 16. 140 See The Medicine Man, supra 93 at 45; see also John G. Bourke, ‘The Medicine Man of Apache,’ U.S. Bureau of Ethnology, 9th Annual Report, 1887– 8 (Washington, 1892) 443 at 455. 141 See Robert Desjarlais, ‘Presence,’ in Performance of Healing, supra note 123 at 143–60. 142 See Carol Laderman, ‘The Poetics of Healing in Malay Shamanistic Performances,’ in Performance of Healing, supra note 123, 115 at 116–17. 143 See Performance of Healing, supra note 123 at 8; see also Prince, supra note 136 at 62; Koumare, supra note 6 at 35. 144 Koumare, ibid. at 34. 145 See Performance of Healing, supra note 123 at 13; see also Airhihenbuwa, supra note 2. 146 Supra note 89 at 115. 147 Necromancy is the practice and belief in the invocation of the spirit of a person or the dead, a god, or ancestral spirit and activating that entity’s powers by calling his or her name. See 1 Sam 28:11–16; see also The Medicine Man, supra note 93 at 212. 148 Ibid. at 25. 149 The notion of evil and (holy) benevolent spirits is a universal religious phenomenon. The Bible, for instance, speaks in countless number of verses about the Holy and evil spirits, about demons and their relationship with human afflictions and the way in which they can be cast out from possessed or afflicted persons. 150 See The Medicine Man, supra note 93 at 105–11. 151 Moxa is a downy substance derived principally from the dried leaves of Artamisia moxa. It is usually burned on the skin as a counterirritant in Chinese/Japanese or Oriental medicine, hence moxibustion. 152 Charms or amulets, unknown to many, are often roots or herbs having medicinal value, even though popular accounts emphasize only their alleged magical significance. See The Medicine Man, supra note 93 at 226.

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Notes to pages 138–41

153 Suction, as a method of exorcism, is practised among the Dakota native healers who are said to apply suction ‘to the seat of the pain to draw out the [afflicting] spirit.’ Ibid. at 24. 154 See Peter Morley, ‘Culture and the Cognitive World of Traditional Medical Beliefs: Some Preliminary Considerations,’ in Culture and Curing, supra note 28 at 3–4. 155 Herbs are said to be used by many spirits and are thought ‘to contain helpful spirits themselves.’ See Krippner and Colodzin, supra note 30 at 25. 156 For instance, Shamana therapy involves the administration of carminatives, digestives, the creation of hunger or thirst; physical exercise, exposure to the sun’s rays – all or some of these may or may not have to do with the notion of exorcism. See Theories of Illness, supra note 11 at 54. 157 The Medicine Man, supra note 93 at 169. 158 See Abdalla, supra note 86 at 138. 159 Maddox, The Medicine Man, supra note 93 at 175–6, quoting George Turner, Nine Years in Polynesia (London, 1861). 160 See Culture and Curing, supra note 28 at 1. 161 See Diop, supra note 26. 162 See George Meyer, ‘The Art of Healing: Folk Medicine, Religion and Science,’ in Folk Medicine, supra note 7, 5 at 17–27. See Generally Value of Herbal Remedies, supra note 31. 163 The Medicine Man, supra note 93 at 283. 164 Aesthetic anthropology focuses ‘on music, dance, fragrance, and shape, and recognizes the symbolic importance of sensuous forms like sounds, movement, odor and color performativity.’ All of these features are aspects of traditional therapeutic activities. See Performance of Healing, supra note 123 at 5. 165 See Ethnomedical Systems in Africa, supra note 1 at 16. On situational logic, see Morley, supra note 154. 166 See John J. Canary, ‘Modern Allopathic Medicine and Public Health,’ in Traditional Medicine and Health Care Coverage, supra note 6 at 92; see also Kenneth R. Pelletier, ‘Psychosomatic Approaches to Healing,’ in Folk Medicine, supra note 7 at 30. 167 For references on the power of suggestion, see Bergman, supra note 107 at 84–5. 168 Propitiation creates relief and ease of mind on the patient, a psychological state appropriate for efficacious recovery. See The Medicine Man, supra note 93 at 218. 169 Ibid. at 112. 170 Ibid. at 175 and n. 1.

Notes to pages 141–6

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171 Ibid. at 112. 172 See Krippner and Colodzin, supra note 30 at 14. Placebo is a Latin word meaning, ‘I will please.’ 173 See Helman, supra note 1 at 137. 174 Ibid. at 138. 175 See Performance of Healing, supra note 123 at 7. 176 Ibid. 177 See Kurup, supra note 51 at 59. 178 Ibid; see also Krippner and Colodzin, supra note 30 at 18. 179 Kurup, supra note 39 at 50–1. 180 Wang Pei, supra note 61 at 69. 181 Ibid. 182 Canary, supra note 166 at 91. 183 See Performance of Healing, supra note 123 at 1. 184 See Helman, supra note 1 at 136; see also De Smet, supra note 114 at 11. 185 Ethnomedical Systems in Africa, supra note 1 at 2. 186 See Erika-Irene Daes, Protecting the Heritage of Indigenous Peoples (New York and Geneva: United Nations Human Rights Studies Series #10, 1997) para. 24 at 3. 187 Good, Ethnomedical System in Africa, supra note 1 at 10, quoting B.L.K Pillsbury, Traditional Health Care in the Near East (Washington, D.C.: USAID, 1970) at 1. 5. Intellectual Property Rights and Traditional Knowledge of Plant-based Therapy (TKPT); The Filtrational of Indigenous Knowledge 1 Convention No. 169 adopted by the General Conference of the International Labour Organization, Geneva, 27 June 1989, and entered into force 5 September 1991, reprinted in 28 International Legal Materials [I.L.M.] 1382 (1989). 2 Adopted by the Subcommission on Prevention of Discrimination and Protection of Minorities by Resolution 1994/45 (26 August 1994), UN Doc. E/CN.4/1995/2/CN.4sub.2/1994/56 (1994); UN Doc e/cn.4/Sub.2/ 1994/2add.1. 3 Draft Inter-American Declaration on the Rights of Indigenous Peoples, Inter-American Session Commission on Human Rights, 1333rd Session, OEA/Ser/L/V/II.95, Doc 6, 26 February 1997; reprinted in (1997) 6 International Journal of Cultural Property 364. 4 The CBD resulted from the 1992 United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro, Brazil, 5 June 1992, reprinted in 31 I.L.M. 818 (1992).

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Notes to pages 146–8

5 Supra note 1. 6 See Michael Halewood, ‘Indigenous Knowledge in International Law: A Preface to Sui Generis Intellectual Property Protection,’ (1999) 44 McGill Law Journal 953 at 970 [Halewood], arguing that ‘there is nothing explicit in the agreement [ILO] regarding conventional intellectual property-style treatment of indigenous and tribal knowledge and innovations.’ 7 See, for example, articles 4(1), 5(a), 7(1), 13(1), 23(1), 25(1) and (2), 27(1), and 30 (1) of ILO Convention No. 169 of 1989, supra note 1. 8 The Convention Establishing the World Intellectual Property Organization (WIPO), 1967 (signed at Stockholm, 14 July 1967, as amended, 28 September 1979), reprinted in 828 United Nations Treaty Series [U.N.T.S.] 3. 9 Unlike the preceding ILO Convention No. 107 (i.e., the Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, reprinted in 328 U.N.T.S. 247), Convention No. 169 does not foreclose the protection of indigenous intellectual property rights. See also Halewood, supra note 6 at 970. 10 See supra note 2. 11 See article 20(1). The omitted portion reads, ‘as well as special measures to ensure for them legal status and institutional capacity to develop, use, share, market and bequeath, that heritage to future generations.’ 12 See article 20(2). This right has a qualifier, to wit: ‘where circumstances so warrant.’ 13 As set out in article 1, the objectives include conservation of biodiversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from the utilization of genetic resources. 14 Article 8(j), 10(c); see also the twelfth preambular paragraph to the Convention. 15 Article 8(j). 16 Traditional medicine approaches can be classified broadly as medication or non-medication oriented. According to Dr. Xiaorui Zhang, coordinator of the World Health Organization’s Traditional Medicine Program, the medication-oriented form of traditional medicine relates to the use of herbal medicine, animal parts and minerals while the non-medication form refers to therapies that do not require medication. Examples of the latter are acupuncture and related techniques, chiropractics, osteopathy, manual therapies qigong, t’ai chi, yoga, naturopathy, thermal therapy, and other physical, mental, spiritual, and mind-body therapies. See Xiaorui Zhang, ‘The Role of Intellectual Property Rights in the Context of Traditional Medicine’ (paper delivered at the WHO Inter-Regional Workshop

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17 18 19

20 21 22 23 24 25

26 27 28 29 30

31

on Intellectual Property Rights in the Context of Traditional Medicine, Bangkok, Thailand, 6-8 December 2000). For a report of the workshop, and summary of Dr. Zhang’s paper, see WHO Doc.: WHO/EDM/TRM/2001.1 at 6–7 [Intellectual Property and Traditional Medicine]. Halewood, supra note 6 at 977. See Intellectual Property and Traditional Medicine, supra note 16 at 3. Article 8(j), which many analysts describe as the heart of the Convention, along with other ancillary provisions such as articles 10(c), 15, and 16–19, rely on the ability of parties at the national levels to fashion out the details of their implementation. This trend partly explains why the CBD is generally regarded as a framework Convention, lacking in details. With regard to article 8(j), discussions on modalities for its implementation have featured in virtually all the Conferences of Parties (COPs) of the CBD. There is currently an Ad Hoc Inter-Sessional Working Group on the Implementation of Article 8(j) and Related Provisions of the Convention. See the WHO, Traditional Medicine Strategy, 2002–2005 (Geneva: WHO, 2002) at 5 [Traditional Medicine Strategy]. Ibid. Ibid. at 21. Ibid. at 25. Held in Geneva, 30 October–1st November 2000. The UNCTAD Expert Meeting was the first of its kind, where indigenous groups attended and participated in the Conference’s intergovernmental program on an impressively large scale. See Intellectual Property and Traditional Medicine, supra note 16 at 2; see also Graham Dutfield, Intellectual Property Rights, Trade, and Biodiversity: Seeds and Plant Varieties (London: Earthscan/IUCN, 2000) at 100–2. Organized by WHO’s Regional Office for South East Asia and held in Bangkok, Thailand, 6–8 December 2000. Traditional Medicine Strategy, supra note 20 at 45. Ibid. Ibid. Held in New Delhi, India, July 2000. See K. Sharma, ‘National Measures and Experience for Protection of Traditional Indian Medical Knowledge of Ayurveda in the Regime of Intellectual Property Rights’ (paper presented at the WHO Inter-Regional Workshop on Intellectual Property Rights in the Context of Traditional Medicine). See Rosemary J. Coombe, ‘The Recognition of Indigenous Peoples’ and Community Traditional Knowledge in International Law,’ (2001) 14 St. Thomas Law Review 275 at 284 [‘Recognition of Indigenous Peoples’

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33 34 35 36

37 38

Notes to pages 151–2 Knowledge’]; see also Graham Dutfield, ‘Protecting and Revitalizing Traditional Ecological Knowledge: Intellectual Property Rights and Community Knowledge Databases in India’ in M. Blakeney, ed., Intellectual Property Aspects of Ethnobiology (London: Sweet and Maxwell, 1999) at 103– 22 [Intellectual Property and Ethnobiology]; see also Arun Agrawal, ‘Dismantling the Divide between Indigenous and Scientific Knowledge,’ (1995) 26 Developments and Change 413 at 429. For examples of traditional knowledge documentation projects in India, such as the Peoples Biodiversity Register, and the Local Innovation Databases of the Society for Research and Initiative for Sustainable Technologies and Institutions (SRISTI), see Dutfield, supra note 31 at 118–20; see also Dutfield, supra note 25 at 121; Anil Gupta, ‘Technologies, Institutions and Incentives for Conservation of Biodiversity in Non-OECD Countries: Assessing Needs for Technical Cooperation’ (paper presented at OECD Conference on Biodiversity and Incentive Measures, Cairns, March 1996); Anil Gupta, ‘Getting Creative People, Individuals and Communities Their Due: Framework for Operationalizing Articles 8(j) and 10(c)’ (paper submitted to the Secretariat of the Convention on Biodiversity, 1996); Tina Rosenberg, ‘Patent Your Heritage,’ New York Times, 15 December 2002; K.S. Jayaraman, ‘Biopiracy Fears Cloud Indian Database,’ available at http://www.scidev (accessed 13 January 2003); The Foundation for Revitalization of Local Health Traditions (FRLHT), Beyond the Biodiversity Convention: Empowering the Ecosystem People (Bangalore: FRLHT, 1995). In December 2002, the Lower House of the Indian Parliament passed a comprehensive National Biodiversity Bill, which was reintroduced to the House after sixty-nine amendments! That bill, now the Biodiversity Act no. 18, 2003 revolutionizes biodiversity and indigenous knowledge protection and management initiatives in India. See Intellectual Property Rights and Traditional Medicine, supra note 16 at 12; see also Rosenberg, supra note 32. See Coombe, Recognition of Indigenous Peoples’ Knowledge, supra note 31 at 283. Held in New Delhi, October 1998. Held in Geneva, 1–2 November 1999. For a report of the Roundtable, see Doc. WIPO/IPTK/RT/99/7; available at http://www.wipo.int/documents/en/meetings/1999/folklore/index_rt.htm (accessed 14 October 2004). See ‘Intellectual Property and Traditional Medicine,’ supra note 16 at 12. See WIPO, Fact Finding Missions on Intellectual Property and Traditional Knowledge 1998–1999 (Geneva: WIPO, April 2001) [FFM].

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39 Shakeel Bhatti, in Intellectual Property and Traditional Medicine, supra note 16 at 12; see generally FFM. 40 See discussions on pages 87–9. 41 See text of the declaration, available at http://users.ox.ac.uk/~wgtrr/ mataatua.htm; (accessed 2 October 2004); see also the discussions in pages 87–9. See generally the World Conference of Indigenous Peoples on Territory, Environment and Development, Kari-Oca, Brazil, 25–30 May 1992, which issued the Kari-Oca Declaration on Indigenous Peoples’ Earth Charter; the Working Principles of the United Nations Technical Conference on Indigenous Peoples and the Environment, Santiago, Chile, 19–22 May 1992, E/CN.4/Sub.2/1992/31. 42 Held at Jingarrba, Daintree Forest Region of North-Eastern Australia, 27 November 1993; see Michael Blakeney, ‘Ethnobiological Knowledge and the Intellectual Property Rights of Indigenous Peoples in Australia,’ in Intellectual Property and Ethnobiology, supra note 31 at 94. 43 See text of the COICA Statement titled ‘Intellectual Property Rights and Biodiversity: The COICA Statement,’ available at http://users.ox.ac.uk/ ~wgtrr/coica.htm (accessed 2 October 2004). 44 See text of the statement titled ‘Final Statement on UNDP Consultation on Indigenous Peoples and Intellectual Property Rights, available at http:// users.ox.ac.uk/~wgtrr/suva.htm (accessed 2 October 2004). This consultation was held in Suva, Fiji, April 1995; see also Michael Blakeney, ‘The Protection of Traditional Knowledge Under Intellectual Property Law,’ (2000) 22 European Intellectual Property Review 251 at 259–60. 45 See text of the Declaration of Belem, available at http://users.ox.ac.uk/ ~wgtrr/belem.htm (accessed 2 October 2004). 46 See text of the Seattle Declaration, available at http://www.gfbv.de/ gfbv_e/docus/wto_e.htm (accessed 14 October 2004). 47 See Rosemary Coombe, ‘Intellectual Property, Human Rights and Sovereignty: New Dilemmas: in International Law Posed by the Recognition of Indigenous Knowledge and the Conservation of Biological Diversity,’ (1998) 6 Indiana Journal of Global Legal Studies 59. 48 See the WIPO document issued from the Roundtable on Intellectual Property and Traditional Knowledge titled ‘Protection of Traditional Knowledge: A Global Intellectual Property Issue,’ WIPO/IPRK/RT/99/2 dated 22 October 1999; see also Peter Drahos, ‘Indigenous Knowledge, Intellectual Property and Biopiracy: Is Global Bio-Collecting Society the Answer?’ (2000) 22 European Intellectual Property Review 245 [‘BioCollecting Society’]. See generally Peter Drahos and John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (New York: New

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50

51

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53

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Notes to pages 156–7 Press, 2002). See also Graham Dutfield, Intellectual Property Rights and the Life Sciences Industries: A Twentieth-Century History (Burlington, VT: Ashgate Publishing, 2003); see also Hope J. Shand, ‘Intellectual Property: Enhancing Corporate Monopoly and Bioserfdom,’ in Andrew Kimbrell, ed., Fatal Harvest: The Tragedy of Industrial Agriculture (Washington, D.C.: Island Press, 2002). See Kamal Puri, ‘Is Traditional Knowledge or Cultural Knowledge a Form of Intellectual Property Rights?’ (seminar paper presented at the Oxford University Intellectual Property Research Centre, 18 January 2000), available at http://www.oiprc.ox.ac.uk/EJWP0100.pdf (accessed 2 October 2002). According to David Vaver, ‘[t]he underlying aim of patent is to protect ideas of “practical application in industry, trade and commerce.”’ See David Vaver, Intellectual Property: Copyrights, Patents, Trade Mark (Concord, ON: Irwin Law, 1997), 119; see also Harry Hillman Chartrand, ‘Intellectual Property in the Global Village,’ available at http://www.usask.ca/library/ gic/v1n4/chartrand/chartrand.html (accessed 17 September 2004); On the interaction between culture and commerce in the intellectual property arena, see Rosemary J. Coombe, The Cultural Life of Intellectual Property Rights: Authorship Appropriation and the Law (Durham, NC: Duke University Press, 1996); Rosemary Coombe, ‘Critical Cultural Studies,’ (1998) 10 Yale Journal of Law and Humanities 463; see also Christine Haight Farley, ‘Protecting Folklore and Indigenous Peoples: Is Intellectual Property the Answer?’ (1997) 30 Connecticut Law Review 1 at 8 [Farley]. See Mark Ritchie et al., ‘Intellectual Property Rights, Biodiversity: The Industrialization of Natural Resources and Traditional Knowledge,’ (1996) 11 St. John’s Journal of Legal Commentary 431; see also Peter Drahos, ‘Indigenous Knowledge and Duties of Intellectual Property Owners,’ (1997) 11 Intellectual Property Journal 179 at 196 (acknowledging the objection to commodification) [ Duties of IP Owners]. See Norman W. Spaulding III, ‘Commodification and Its Discontents: Environmentalism and the Promise of Market Incentives,’ (1997) 16 Stanford Environmental Law Journal 294 at 311 (on the intricacies of applying a neoclassical economic or free market approach to the realm of environmental protection vis-à-vis a command and control option). See Stephen Brush and Doreen Stabinsky, eds., Valuing Local Knowledge: Indigenous Peoples and Intellectual Property Rights (Washington, DC: Island Press, 1996) [Valuing Local Knowledge] at 3. Describing intellectual property rights as tools of capitalism, Stephen Brush and Doreen Stabinsky warn against their ‘potential harm in the

Notes to pages 157–8

55 56 57

58 59

60 61 62

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arena that involves indigenous peoples, peasants …’ Continuing, they argue that the idea of ‘[i]ntellectual property for indigenous knowledge, commoditizing knowledge and plant life, and biological prospecting are part of a rush to capitalism in times of aversion to common solutions to public problems.’ Ibid. See Ritchie, supra note 51 at 432. See Duties of IP Owners, supra note 51 at 180. Ikechi Mgbeoji, ‘Patents and Plants: Re-thinking the Role of International Law in Relation to Appropriation of Traditional Knowledge of the Uses of Plants (TKUP),’ S.J.D. Thesis, Dalhousie University 2001 [‘Patents and Plants’] at 375–6. Ibid. See Duties of IP Owners, supra note 51; see also Thomas Cotter, ‘The Protection of Genetic Resources and Traditional Knowledge in International Law: Past, Present and Future,’ in Susette Biber-Klemm, ed., ‘Legal Claims to Biogenetic Resources’ (papers presented at a Workshop held at the Institute for European and International Economic Law, University of Berne, June 1977) at 11. See Duties of IP Owners, supra, note 51 at 197. Ibid. See Arun Agrawal, ‘On Power and Indigenous Knowledge,’ in D. Posey, ed., Cultural and Spiritual Values of Biological Diversity: A Complementary Contribution to the Global Biodiversity Assessment (Nairobi; London: Intermediate Technology Publication/UNEP: 1999) 178; Lester Yano, ‘Protection of Ethnobiological Knowledge of Indigenous Peoples,’ (1993) 41 University of California Los Angeles Law Review 443. See generally Marie Battiste and James Henderson, Protecting Indigenous Knowledge and Heritage: A Global Challenge (Saskatoon: Purich Publications, 2000). See Farley, supra note 50 at 30 and n. 117; see also Justin VanFleet, ‘Protecting Knowledge,’ Human Rights Dialogue, Spring 2003 at 18. See Marci Hamilton, ‘The TRIPS Agreement: Imperialistic, Outdated and Overprotective,’ (1996) 29 Vanderbilt Journal of Transnational Law 613 at 617; see also Ikechi Mgbeoji, ‘Patents and Traditional Uses of Plants: Is a Communal Patent Regime Part of the Solution to the Scourge of BioPiracy?’ (2001) 9 Indiana Journal of Global Legal Studies 163 at 182. See Justin Hughes, ‘The Philosophy of Intellectual Property,’ (1988) 77 Georgetown Law Journal 287; Jeremy Waldron, ‘From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,’ (1983) 68 ChiKen Law Review 841; see also Keith Aoki, ‘Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of Inter-

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69 70 71

72 73 74 75

76 77

78

Notes to pages 158–60 national Intellectual Property Protection,’ (1998) 6 Indiana Journal of Global Legal Studies 11 at 26–7; Duties of IP Owners, supra note 51 at 182 (noting that intellectual property sifts knowledge out of intellectual commons even though it does not foreclose access to such knowledge); Ritchie et al., supra note 51 at 432. See Valuing Local Knowledge, supra note 53 at 18; see also Farley, supra note 50 at 33. See Farley, ibid. at 30. See Mohammed Khalil, ‘Biodiversity and Conservation of Medicinal Plants: Issues from the Perspectives of the Developing World,’ in Timothy Swanson, ed., Intellectual Property Rights and Biological Diversity Conservation: Interdisciplinary Analysis of the Values of Medicinal Plants (Cambridge: Cambridge University Press, 1995) at 240 [Khalil]. (1991), 21 I.P.R. 481. (1994), 54 F.C.R. 240 (Austl.); see also Bulun Bulun and Milpurrurru v. R. and T. Textiles Pty. Ltd. (1998), 41 IPR 513; Puri, supra note 49. See Khalil, supra note 68 at 242; see also John Frow, ‘Public Domain and Collective Rights in Culture,’ (1998) 13 Intellectual Property Journal 39 at 51 (arguing that indigenous cultural knowledge forms are not necessarily based on unrestricted public access but it is governed by secrecy regimes and regulated forms of openness). Duties of IP Owners, supra note 51 at 186–7. See Gupta, ‘Getting Creative People,’ supra note 32; see also Dutfield, supra note 25 at 120–1. See Mgbeoji, supra note 64 at 183. See WIPO Documents, WIPO/GRTFK/IC/2/9, ‘Survey on Existing Forms of Intellectual Property Protections for Traditional Knowledge: Preliminary Analysis and Conclusions,’ paper prepared by the WIPO Secretariat for the Second Meeting of the Intergovernmental Committee on Intellectual Property and Genetic Resources Traditional Knowledge and Folklore (IGC), available at http://www.wipo.int/eng/meetings/2001/igc/pdf/ grtkfic2_9.pdf (accessed 14 October 2004); WIPO/GRTFK/IC/8/8, titled ‘Elements of a Sui Generis System for the Protection of Traditional Knowledge’ (paper prepared by WIPO Secretariat for the IGC’s Third Session Geneva, 13–21 June 2002) para. 26 at 13 [Elements of Sui Generis]. ‘Patents and Plants,’ supra note 57 at 374. See, for example, Feist Publications Inc. Ltd. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) at 345; see also Farley, supra note 50 at 18; see generally CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.R. 13. See Stephen Brush, ‘Whose Knowledge, Whose Genes, Whose Rights?’ in

Notes to pages 160–2

79 80 81 82 83

84

85

86

87

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Valuing Local Knowledge, supra note 53 at 3 (arguing that the knowledge and biological resources of farmers, herbalists, et cetera have historical status as ‘common heritage held in trust for the public good’); see also chapter 1, pages 28–32. See ‘Duties of IP Owners,’ supra note 51 at 182. See Stephen Brush, ‘Is Common Heritage Outmoded?’ in Valuing Local Knowledge, supra note 53. See Farley, supra note 50 at 32. See Lara Ewens, ‘Biotechnology and Intellectual Property,’ (2000) 23 Boston College International and Comparative Law Review 289 at 305. Pioneering initiatives on this concept included the UNESCO Convention for the Protection of the World Cultural and Natural Heritage, reprinted in 11 I.L.M 1358 (1972). This Convention not only requires states’ cooperation for the preservation of cultural heritage but also expects states to recognize duties with regard to some global cultural commons. Also, there is the Council of Europe’s International Legal Protection of Cultural Property (Strasbourg, 1984), under which individual states may recognize the existence of distinct cultural commons within their territorial jurisdictions. See Rudiger Wolfrum, ‘The Principle of Common Heritage of Mankind,’ (1983) 43 Heidelberg Journal of International Law 312; see also Stephen Gorove, ‘The Concept of Common Heritage of Mankind: A Political Moral and Legal Innovation,’ (1972) 9 San Diego Law Review 390. Articles 3 and 5(1) endorse the sovereign rights of states over their natural (biological) resources. On 14 December 1962, UNGA adopted a Resolution on Permanent Sovereignty over Natural Resources. See G.A. Res. 1803 (XVII) UN GAOR, 17th Sess., Supp. No. 17 at 15; UN Doc. A/S217 (1962), reprinted in 2 I.L.M. 223 (1963); see also G. Elian, The Principle of Permanent Sovereignty over Natural Resources (Alphen aas den Rijin: Sijthoff and Noodhoff, 1979). See Puri, supra note 49; see also UNESCO-WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions (Geneva: June–July, 1982), reprinted in (1982) 16 Copyright Bulletin 62. According to Farley, ‘This limited term of protection means that most folkloric works [for instance] may already be in the public domain,’ i.e., assuming they satisfy other requirements for copyright protection. See supra note 50 at 18. Peter Drahos’s Global Bio-collecting Society is proposed to ‘help indigenous groups to solve the problem of international free-riding by offering them some prospect that the rights over their knowledge would be recog-

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92 93 94

95 96

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Notes to pages 163–4 nized by companies irrespective of where these companies are located.’ See ‘Bio-Collecting Society,’ supra note 48 at 249. See, for example, article 16(5) of the CBD, and article 27 of the TRIPS Agreement. See section 2 of the Canadian Patent Act, R.S.C. 1985 c. P-4; similarly, the U.S. Patent Act, 35 U.S.C. (1994), section 101 of which provides: ‘Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new useful improvement thereof, may obtain a patent therefor.’ On the interpretation of the scope and meaning of invention under section 2 of the Canadian Patent Act, see Harvard College v. Canada, [2002] 4 S.C.R. 45 [Harvard Mouse]. See Vaver, supra note 50 at 120; see also Harold Potts, ‘The Definition of Invention in Patent Law,’ (1944) 7 Modern Law Review 113. In its brief to the IGC, WIPO notes that ‘[m]ost patent laws, for example, do not precisely define the concept of an “invention.” Equally, international harmonization and standard-setting in patent law have proceeded without specific or authoritative international definitions of this fundamental concept – although what constitutes an ‘invention’ has strong elements of harmony in practice, significant differences continue to apply at the national level after some 120 years of progressive international harmonization.’ See ‘Elements of Sui Generis,’ supra note 75 para. 11 at 5–6. Vaver, supra note 50 at 120. Ibid. See Fritz Malchup, ‘An Economic Review of the Patent System, Study of the Subcommittee on Patents, Trademark and Copyright Committee on the Judiciary’ (United States Senate, 85th Congress, 2nd Session, Study #15) at 2; see also Ikechi Mgbeoji, ‘Patents and Plant Resources-Related Knowledge: Toward a Regime of Communal Patents for Plant ResourcesRelated Knowledge,’ in Environmental Law in Developing Countries (Bonn: IUCN Environmental Policy and Law Paper #43, 2001) 79 at 87. See Duties of IP Owners, supra note 51 at 188. See Daniel Gervias, The TRIPS Agreement: Drafting History and Analysis (London: Sweet and Maxwell, 1998); see also Susan K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003); Drahos and Braithwaite, supra note 48. For example, before the TRIPS Agreement, national governments had unfettered power to determine the terms of patent and patentable subjects in their territories. Many developing countries, capitalizing on these, tended to exempt pharmaceuticals and other inventions relating to food and agriculture from patent. The controversy surrounding South Africa

Notes to pages 165–6

98

99 100

101 102 103

104 105

106

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and United States over the former’s exercise of compulsory licence in order to make HIV/AIDs-related drugs accessible has its roots in the TRIPS Agreement’s emasculation of powers hitherto accruing to developing countries, in this case, the power to compulsorily license patents. See note 114. Union pour la Protection des Obsetentions Vegetales (UPOV) of 2 December 1961. The Convention has been revised a number of times in the following order: 10 November 1972 and 23 October 1978. The last revision occurred on 19 March 1991, available at http://www.upov.int/en/ publications/conventions/1991/content.htm (accessed 12 September 2004). UPOV membership was until very recently made up of elite industrialized countries of the North, especially those having major industrial interests in agriculture and biotechnology. Texts of the various versions of the UPOV Convention are available at http://www.upov.int/ en/publications/conventions/index.html (accessed 26 December 2002). See 35 U.S.C. 161 (1988 and Supp.1996). It substituted the requirement for technically written specifications with the deposit of a sample of the ‘invention.’ See Chidi Oguamanam, ‘Genetic Use Restriction (or Terminator) Technologies (GURTs) in Agricultural Biotechnology: The Limits of Technological Alternative to Intellectual Property,’ (2005) 4 Canadian Journal of Law and Technology 59 at 69. 44 U.S. 303 (1980); [1989] 1 S.C.R. 1623. Ex Parte Hibbard, 227 U.S.P.Q. 443 (1985). See the text of the Convention on the Grant of European Patents (European Patent Convention) of 1973, as severally amended: see 1160 UNT.S. 231, available at http://www.european-patent-office.org/legal/epc/e/ ma1.html (accessed 26 May 2003). There is no sense of certainty whether what is prohibited by the European Convention is plants qua plants or plant varieties. (1989), 25 C.P.R. (3d) 257. See supra note 90. Cf. Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902, where the Supreme Court of Canada, while reiterating that the Canadian Patent Act does not support patenting of higher life forms, granted patent protection to a genetically modified plant containing patented genes and modified cells. PBR is a patent-like protection granted for the duration of twenty years to developers of new sexually reproducing plants. In principle, PBR is supposed to be a relaxed or less stringent regime than a patent. Because compliance with technical details of patent law is hard to attain in the

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Notes to pages 167–8

plant-breeding context, PBR provides an alternative regime of protection. 107 See supra note 98. 108 See Dutfield, supra note 25 at 102–6. 109 Farmers’ right is a concept promoted by the FAO as part of its Global System for Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture. Pursuant to this, the FAO initiated the International Undertaking on Plant and Genetic Resources (IUPGR), a nonlegally-binding agreement that promotes the farmers’ rights concept. The undertaking represents the first international instrument dealing with conservation and sustainable use of plant genetic resources for food and agriculture. 110 Approved by FAO Resolution 3/2001, and opened for signature on 3 November 2001, it gives legal effect to the idea behind the IUPGR. For text of the treaty, see http://www.fao.org/Legal/default.htm (accessed 26 May 2003). On 6 November 2002, the United States, after foot-dragging for a year, signed the FAO treaty as the seventy-sixth state to do so. 111 See Susan K. Sell, ‘Post-TRIPS Developments: The Tension between Commercial and Social Agendas in the Context of Intellectual Property,’ (2002) 14 Florida Journal of International Law 193 at 203 and n. 37 quoting Seth Schulman in Owning the Future (Boston: Houghton Mifflin, 1999) at 49. 112 33 I.L.M. 1194 (1994). 113 The agreement has an interpretative footnote 5 that reads: ‘For the purposes of this Article, the terms “inventive step” and “capable of industrial application” may be deemed by a Member to be synonymous with the terms “non-obvious” and “useful” respectively.’ 114 See Winston P. Nagan, ‘International Intellectual Property, Access to Health Care, and Human Rights: South Africa v. United States,’ (2002) 14 Florida Journal of International Law 147; Sell, supra note 111; James Thuo Gathii, ‘Rights, Patents, Markets and the Global AIDS Pandemic,’ (2002) 14 Florida Journal of International Law 261. 115 See Richard G. Tarasofsky, ‘The Relationship between the TRIPS Agreement and the Convention on Biological Diversity: Toward a Pragmatic Approach,’ (1997) 6 Review of European Community International Environmental Law 148 at 151. 116 Further developments and controversies surrounding article 27, since the coming into force of TRIPS, suggest that article 27 is TRIPS’ framework for dealing with the indigenous knowledge question. For instance, paragraph 19 of the Doha Declaration of the Fourth Ministerial Meeting of the WTO identifies, inter alia, issues concerning traditional knowledge

Notes to pages 169–71 285

117 118 119

120 121 122

123

124

125 126

and folklore as part of the agenda items for the review of the TRIPS agreement pursuant to the latter’s articles 27.3(b) and 71. Sell, supra note 111 at 205. Ibid. at 203. See ‘Patents and Plants,’ supra note 57 at 388; see also Dan Leskien and Michael Flitner, ‘Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System,’ Issues in Genetic Resources 6 (Rome: International Plant Genetic Resources Institute, June 1997) at 1. See Halewood, supra note 6 at 962. See Duties of IP Owners, supra note 51 at 196. The following illustrations refer to the benchmark for patentability. Patent standards are, however, malleable. Often they are subject to a number of factors, including but not limited to the type of technology, applicable municipal regime, and subject matter. For instance, patentability standards tend to be lower with respect to life sciences–based inventions (biotechnology) as opposed to inventions in other industrial sectors. See generally Naomi Roht-Arriaza, ‘Of Seed and Shamans: The Appropriation of Scientific and Technical Knowledge of Indigenous and Local Communities,’ (1997) 17 Michigan Journal of International Law 940; Shayana Kadidal, ‘Subject Matter Imperialism? Biodiversity, Foreign Prior Art and the Neem Controversy’ (1996/7) 37 IDEA (Journal of Law and Technology) 371; Samuel Oddi, ‘TRIPS: Natural Rights and a Polite Form of Economic Imperialism,’ (1996) 29 Vanderbilt Journal of Transnational Law 415; Yano, supra note 62; Leanne Fecteau, ‘The Ayahuasca Patent Revocation: Questions about Current U.S. Patent Policy,’ (2001) 21 Boston College Third World Law Journal 69 [‘Ayahuasca Patent Revocation’]. See ‘Patents and Plants,’ supra note 57 at 328. While patent is granted to artificially purified natural substances that do not ordinarily occur in nature, metals that are similarly inclined have not benefited from patent protection. The most cited instance is the case of the metal tungsten, which is used as electric bulb filament. Tungsten is impure in its natural state, requiring great effort at purification. Purified tungsten is not patentable on the basis that what results from an acknowledged laborious purification process of the element are evaluated as natural qualities of pure tungsten. See General Electric Co. v. Deforest Radio Co., 28 F. 2d 641 (3d Cir. 1928) cert. denied, 278 U.S. 656 (1929); Yano, supra note 62 at 460. See Harvard Mouse and Pioneer Hi-Bred cases, supra nn. 90 and 104; see also ‘Patents and Plants,’ supra note 57 at 288. Yano, supra note 62 at 459.

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127 See ‘Bio-Collecting Society,’ supra note 48 at 246. 128 See Graham Dutfield, ‘Protecting and Revitalizing Traditional Knowledge,’ supra note 31 at 103; Graham Dutfield, supra note 25, at 108–24; see also G. Nijar, ‘In Defence of Indigenous Knowledge and Biodiversity: A Conceptual Framework and Essential Elements of a Rights Regime’ Third World Network Paper #1 (Penang, Malaysia, 1996); Mgbeoji, supra note 64. See generally, supra note 31. 129 ‘Patents and Plants,’ supra note 57 at 375. 130 See Mamadou Koumare and Piero Coppo, ‘Traditional Medicine and Psychiatry in Africa [Sections II and II]’ in Bannerman et al., eds., Traditional Medicine and Health Care Coverage: A Reader for Health Administrators and Practitioners (Geneva: World Health Organization, 1983) 25–36 [Traditional Medicine and Health Care Coverage]. 131 Agrawal, supra note 62. 132 Ibid. For a critique of the logic of development in the context of traditional and allopathic medicine, see Collins O. Airhihenbuwa, Health and Culture: Beyond Western Paradigm (Thousand Oaks: Sage Publications, 1995) at ix–xi [Airhihebuwa]. 133 Agrawal, supra note 62 at 180. 134 Ibid. at 178. 135 Ibid. 136 Ibid. at 179. 137 Ibid. 138 Ibid. 139 Ibid. 140 See Roht-Arriaza, supra note 123 at 956–67. 141 Supra note 62 at 178. 142 See Yano, supra note 62 at 460. 143 Ibid. 144 A new expression in intellectual discourse, simply defined, ‘[b]iopiracy is the unauthorized and uncompensated expropriation of genetic resources and traditional knowledge. It is seen as a new form of Western imperialism in which global seed and pharmaceutical corporations plunder the [bioresources] biodiversity and traditional knowledge of the developing world.’ See Sell, supra note 111 at 202; see also Ikechi Mgbeoji, Global Biopiracy: Patents, Plants, and Indigenous Knowledge (Vancouver: UBC Press, 2005); Vandana Shiva, Biopiracy: The Plunder of Nature and Knowledge (Boston: South End Press, 1997). Contra Paul J. Heald, ‘The Rhetoric of Biopiracy’ (2003) 11 Cardozo Journal of International and Comparative Law 519–46.

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145 See David R. Downes, ‘How Intellectual Property Could Be a Tool to Protect Traditional Knowledge,’ (2000) 25 Columbia Journal of Environmental Law 253 at 279 [Downes]; see also Fecteau, supra note 123. 146 The ayahuasca plant patent #5, 751 was issued back in June 1986 to America’s Loren S. Miller. It granted Miller a right over a variety of Babisteriopsis caapi, which he named Da-Vine. Miller had claimed that his ‘invention’ represented a novel and unique variety of B. caapi, and admitted that he had obtained a cutting of the plant from a domestic garden in the Amazon rainforest. In 1995 the Rural Advancement Foundation International (RAFI) (now ETC Group) exposed Miller and drew international attention to the patent. Like the Neem patent, ayahuasca became an international rallying point in opposition to American IPR policy. In November 1999, the USPTO revoked Miller’s plant patent on Da-Vine on the basis of lack of novelty but did not even acknowledge the argument that the cultural and spiritual value of ayahuasca warranted its exemption from patentaibility on those grounds. More precisely, USPTO’s order of rejection was premised on the narrow ground that B. caapi (ayahuasca) has been described in herbarium sheets of Chicago’s Field Museum more than a year preceding the Miller application. See ibid. at 86 and n. 131. 147 See Glenn Wiser and David R. Downes, ‘Comments on Improving Identification of Prior Art: Recommendations on Traditional Knowledge Relating to Biological Diversity Submitted to the United States Patent and Trademark Office,’ 2 August 1999, available at http://www.ciel.org .Publications/IdentificationofPriorArt.pdf (accessed 10 October 2004); see also Glenn M. Wiser, ‘PTO Rejection of the Ayahuasca Patent Claim: Background and Analysis (1999),’ available at http://www.ciel.org/ Biodiversity/ptorejection.html (accessed 10 October 2004); ‘Ayahuasca Patent Revocation,’ supra note 123 at 187. 148 Ibid. 149 See Kadidal, supra note 123 at 371. 150 Ibid. at 372 and n. 3. 151 See Vandana Shiva, ‘The Neem Tree: A Case History of Biopiracy,’ available at http://www.twnside.org.sg/title/pir-ch.htm (accessed 14 October 2004). 152 Ibid. 153 See Shiva, ibid. see also J. Kocken and G.V. Roozendaal, ‘The Neem Tree Debate,’ Biotechnology and Development Monitor, 30 March 1997 at 8–11. 154 For example, U.S. patent #4946681 obtained in 1990 related to a technique

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159 160

161 162

Notes to pages 178–9 for improving the storage stability of neem extracts containing azadirachtin. The 1991 European patent #EPO436257 was for ‘Method for Controlling Fungi on Plants by Aid of Hydrophobic Extracted Neem Oil’; a 1994 US patent #5124349 related to ‘A Storage-Stable Insecticidal Composition Including a Neem That Had Increased Stability.’ See Allan Durham, Patent Law Essential: A Concise Guide (Westport, CT: Quorum Books, 1999), 64. In Lowell v. Lewis 15 F. Cas. 1018, 1019 (C.C.D Mass. 1817). Interpreting section 101’s provision on usefulness, the court held that the requirement of usefulness ‘is incorporated into the [Patent] Act in contradistinction to mischievous or immoral.’ See also ‘Ayahuasca Patent Revocation,’ supra note 123 at 88. After the utility requirement had been regarded as morally neutral, the explosion of biotechnology industries in the mid-twentieth century has led courts to revisit the moral utility doctrine. Ibid. at 89 See Tol-O-Matic Inc. v. Proma Produkt-Und Marketing GmbH., 945 f. 2d 1546, at 1552–3 (Fed. Cir. 1991). Interestingly, the USPTO has issued an advisory opinion that endorsed the Tol-O-Matic Inc. decision. See U.S. Patent and Trademark Office, ‘Facts on Patenting Life Forms Having Relationship to Humans, Media Advisory 98–6,’ available at http:// www.uspto.gov/web/offices/com/speeches/98-06.htm (accessed 1 April 1998). It needs mentioning that the Tol-O-Matic decision of 1991 followed the Lowell decision of 1817. The USPTO advisory opinion is designed to preempt a proposed defensive patent application on a human animal chimera: a genetically engineered creature composed in equal half of human and animal cells. Activists Dr. Stuart Newman and Jeremy Rifkin used the proposal as a defensive strategy to press their opposition to patenting life forms. They have appealed the rejection of their application with the hope that the rejection will eventually be endorsed by the Supreme Court so as to frustrate subsequent attempts. See ‘Ayahuasca Patent Revocation,’ supra note 123 at 90–2. See European Council Directive 98/44/EC, articles. 3 and 6. 1998 O.J. (L 213) 13. Analogous to public policy, the concept of ordre public derives from French law. See Timothy Ackerman, Comment, ‘Dis’ordre’ly Loopholes: TRIPS Patent Protection and the ECJ,’ (1997) 32 Texas International Law Journal 489 at 495. The ‘Ayahuasca Patent Revocation,’ supra note 123 at 93. Ibid.; quoting Ackerman, supra note 160 at 495; see also M. Forde, ‘The Ordre Public Exception and Adjudicative Jurisdiction Convention,’ (1981)

Notes to pages 179–81 289 29 International and Comparative Law Quarterly 259 at 259–60. 163 It does, however, seem that where a patent on a plant raises a strictly constitutional question regarding freedom of worship, for instance, of Native or African Americans, then it is likely that it would be offensive to the fundamental norm. Related cases on freedom of worship deal with the use of plant drugs or hallucinogenic substances such as peyote. 164 However, the TRIPS Agreement contains a qualifier to the effect that patents can be denied only on the ordre public grounds if preventing the patent’s commercial exploitation is ‘necessary’ to protect ordre public or morality. There must be a linkage between commercial exploitation and morality. It does appear that an interpretation of what is necessary may be called for. 165 This unreported case is discussed in Robert K. Paterson and Dennis Karjala, ‘Looking Beyond Intellectual Property in Resolving Protection of Intangible Cultural Heritage of Indigenous Peoples,’ (2003) 11 Cardozo Journal of International Law and Dispute Resolution 633 at 660–61, and in Benoît Pelletier, ‘The Case for the Treasures of L’Ange Gardien: An Overview,’ (1993) 1 International Journal of Cultural Property 371. 166 (1987), 8 Q.A.C. 1 (C.A.); leave to appeal refused: 15 Q.A.C. 160N (S.C.C. 1987). 167 The TRIPS Agreement requires that patent exclusion on the basis of ordre public not be premised on a positive prohibition of the domestic law. Fundamental norms in societies may or may not have legal backing. It would seem that what is a fundamental norm is a factual or empirical question in a given society. Whether a fundamental norm has the backing of national law or does not, it is argued that under TRIPS, the ordre public prohibition is sustainable even if it has the backing of national law in so far as it is not on the basis of that law that a patent is denied. 168 More notable ones include Andean (Bolivian) quinoa, Indian turmeric, neem, ayhuasca, basmati, etc. 169 The Ethiopian zebra mollusk, Mexican yellow bean, etc. 170 The term ‘folklore’ is controversial in some respects. It usually invokes suspicion from indigenous and local communities who reject the use of the term in an ethnocentric sense by the dominant culture. As a result of the reservations, many indigenous peoples desire to have a substitute term. Consequently, the term ‘Indigenous cultural and Intellectual Property Rights’ is proposed. See Report of the Joint WIPO-UNESCO World Forum on the Protection of Folklore, Phuket, 1997, WIPO Doc., UNESCO/WIPO/FOL/PKT/97/1 (17 March 1997); see also the WIPO, 1967, 1982, 1984: Attempt to Provide International Protection for Folklore by

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176 177

178

179 180 181

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183 184

Notes to pages 181–2 Intellectual Property Rights WIPO Doc., UNESCO-WIPO/FOLK/PKT/97/ 19 (21 March 1997). See Erica-Irene Daes, ‘Working Group on Indigenous Populations: Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples,’ E/CN.4/Sub.2/1993/28 (July 28 1993). See also Blakeney, supra note 44; FFM, supra note 38 at 22. See Blakeney, supra note 44; see also section 2 of the WIPO-UNESCO Model Provisions, supra note 86. Ibid. See Blakeney, supra note 44 at 252. Farley, supra note 50 at 14. See Isidore Okpewho, The Epic in Africa: Toward a Poetics of Oral Performance (New York: Columbia University Press, 1979); Isidore Okpewho, Oral Performance in Africa (Ibadan, Nigeria: Spectrum Books, 1990). See Farley, supra note 50 at 17. See ‘Elements of Sui Generis,’ supra note 75 at para. 23 at p. 11. Under the Berne Convention for the Protection of Literary and Artistic Works, some prayers may fall under the category of ‘unpublished works of unknown authorship’ protected under article 15(4)(a) of the Convention. See the Tunis Model Law on Copyright (1976), reproduced in (1976) 12 WIPO Copyright Monthly Review 165; see also Halewood, supra note 6 at 967. See Section 18 of Tunis Model Law on Copyright for Developing Countries. Ibid. See also Farley, supra note 50 at 44. To this end, it provides for Public Domain Payant in section 17. This is payment for the use of folkloric work in the public domain. Section 17 appears to presuppose that folklore has a fixed term. However, it is not clear if it refers to folklore already in the public domain. See Farley, ibid. at 43 and n. 170. The 1971 Paris Act of the Berne Convention for the Protection of Literary and Artistic Work in section 15(4) provides for rights on anonymous works, i.e., unpublished works of unknown authors who are of a Convention member country nationality. Analysts claim that this provision incorporates the protection of folklore under the Berne Convention. See Sam Ricketson, Berne Convention for the Protection of Literary and Artistic Works, 1886–1986 (London: Centre for Commercial Law Studies, Queen Mary College, 1987), 313; see also Farley, supra note 50 at 42–3. See Model Provisions, supra note 86. See ‘United Nations Working Group on Intellectual Property Aspects of Folklore Protection,’ (1981) 15:2 Copyright Bulletin 19 at 22; see also

Notes to pages 182–7

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Farley, supra note 50 at 45. 185 The Model has provided the basis for modern copyright regimes in a number of African countries including Nigeria, Ghana, Angola, Gabon, the Democratic Republic of Congo, Malawi and Tunisia. 186 See Farley, supra note 50; Halewood, supra note 6 at 968. See also Shyllon, ‘Conservation and Preservation of Folklore in Africa: A General Survey,’ (1998) 22:4 Copyright Bulletin 37; and Blakeney, supra note 44 at 257 187 See Halewood, supra note 6 at 968 (endorsing the idea that indigenous and local farmers’ innovations can be construed as expressions of folklore); see also Kari-Oca Declaration on Indigenous Peoples’ Earth Charter, supra note 41. 188 Emphasis added. See FFM, supra note 38 at 22. 189 See Erica-Irene Daes, ‘Protecting the Heritage of Indigenous Peoples’ (New York: United Nations Human Rights Study Series #10, 1997), para. 34 at 3; see also FFM, supra note 38 at 23. 190 See Blakeney, supra note 44 at 252. 191 See Daes, supra note 189 para. 26 at 4. 192 See Halewood, supra note 6 at 985. 193 Ibid. at 987 (citing interview with Richard Owens, director, WIPO’s Global Intellectual Property Issues Program). 194 See David Downes, supra note 145 at 268–73; see also ‘Elements of Sui Generis,’ supra note 75 at para. 26 at 13; WIPO Doc., WIPO/GRTKF/IC/ 2/9 para. 24. 195 TRIPS Agreement, supra note 112, article 22(1). 196 Ibid. article 15. 197 Ibid. article 22. 198 See Downes, supra note 145. 199 Ibid. at 270. Some examples of native arts distinguished by their geographic markers include pueblo pottery, silver, jewellery, drums, etc. Mexico has enacted an Indian Arts and Crafts Protections Law. The law requires retailers of native arts and crafts to ascertain the authenticity of manual production of the goods through the use of natural products by indigenous peoples, so as to be entitled to the geographic or certification indicator as: ‘An authentic Indian hand-made piece.’ Ibid., 270–1. The United States has a similar legislation, The Indian Arts and Craft Act of 1990, P.L. No. 101–644, 101st Cong., 2nd Sess (1990). 200 Downes, supra note 145 at 270. 201 See Farley, supra note 50 at 14–15. 202 See Pennapa Subcharoen, ‘Indigenous Knowledge and Intellectual Property: Thai Study,’ paper presented at the Inter-Regional Workshop

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204 205

206 207 208 209 210 211 212

213

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Notes to pages 187–9 on Intellectual Property in the Context of Traditional Medicine, Bangkok, 6–8 Dec. 2000. See Intellectual Property and Traditional Medicine, supra note 16 at p. 17. See also the story of Taxus brevifolia in chapter 2, page 42. Halewood, supra note 6 at 990. Michael Blakeney observes that: ‘Today in Australia, indigenous peoples regard the protection of traditional knowledge as an issue of self-determination.’ See supra note 44 at 258. See also the list of indigenous peoples’ declarations and statements, supra nn. 41–6. See Coombe, supra note 31 at 277. See Erica-Irene Daes, ‘The Concept of Self-Determination and Autonomy of Indigenous Peoples in the U.N. Draft Declaration on the Rights of Indigenous Peoples,’ (2001) 14 St. Thomas Law Review 259 at 261; see also article 3 of the UN Draft Declaration that reads, ‘[I]ndigenous Peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.’ GA Res. 271A (III) 3 (I), UN GAOR Resolution 71, UN Doc. A/810 (1948), article 27. See 999 171 U.N.T.S. (1966), article 27. See article 25 of ILO Convention No. 169 of 1989, supra note 1. See articles 3 and 31, and the nineteenth preambular paragraph. See chapter 3 above, section 3.1.7. See articles 24 and 29 of the UN Draft Declaration on the Rights of Indigenous Peoples, supra note 2. David Phillips defines it as ‘the existence and use of a wide range of sources of medical care, traditional and modern, static and evolving.’ See David Phillips, Health Care in the Third World (New York: Youngman, 1990) at 75. See Irwin Press, ‘Problems in the Definition and Classification of Medical Systems’ (1980) 14B Social Science and Medicine 45 at 47; Charles M. Good, Ethnomedical Systems in Africa: Patterns of Traditional Medicine in Rural and Urban Kenya (New York: Guilford Press, 1987) at 23. See John M. Janzen, The Quest for Therapy: Medical Pluralism in Lower Zaire (Berkeley: University of California Press, 1978); see also Horatio Fabrega, ‘A Commentary on African Systems of Medicine’ in P. Stanley Yoda, ed., African Health and Healing Systems, Symposium Proceedings (Los Angeles: Cross Roads, 1982). See Koumare and Coppo, supra note 130 at 25; Raymond Prince, ‘The

Notes to pages 189–95 293

216

217 218 219 220 221

Psychiatrist and the Folk Healer: Interface and Partnership,’ in George Meyer et al., eds., Folk Medicine and Herbal Healing (Springfield, Illinois: Charles C. Thomas, 1981) at 57–83; T. Adeoye Lambo, ‘Neuropychiatic Observations in the Western Region of Nigeria,’ (1959) 2 British Medical Journal 1388–94; see also T.A. Lambo, ‘Traditional Healing and the Medical/Psychiatric Mafia’ interview of T.A. Lambo, M.D., with Philip Singer, in P. Singer, ed., Traditional Healing: New Science or New Colonization: Essays in Critique of Medical Anthropology (New York: Conch Magazine Publishers, 1977) 242 at 246. See David P. Fidler, ‘Neither Science Nor Shamans: Globalization of Markets and Health in the Developing World,’ (1999) 7 Indiana Journal of Global Legal Studies 191. Ibid. at 220. Ibid. Ibid. at 218 and n. 106. Ibid. at 223. See Coombe, supra note 31 at 285.

6. Toward a Cross-cultural Dialogue on Intellectual Property Rights 1 See ‘The Impact of Intellectual Property Rights Systems on the Conservation and Sustainable Use of Biological Diversity and on the Equitable Sharing of Benefits from Its Use,’ UNEP/CBD/COP/3/22 (paper submitted to the Third Conference of Parties Meeting, Buenos Aires, 4–15 November 1996) UNEP/CBD/COP/3/22, available at http:// www.biodiv.org/doc/meetings/cop/cop-03/official/cop-03-22-en.pdf [‘The Impact of IPRs’]. 2 See Erica-Irene Daes, ‘The Concepts of Self-Determination and Autonomy of Indigenous Peoples in the Draft United Nations Declaration on the Rights of Indigenous Peoples,’ (2002) 14 St. Thomas Law Review 259 at 264. 3 See Naomi Roht-Arriaza, ‘Of Seeds and Shamans: Appropriation of Scientific and Technological Knowledge of Indigenous and Local Communities,’ (1996) 17 Michigan Journal of International Law 919 at 964. 4 See Arun Agrawal, ‘On Power and Indigenous Knowledge,’ in Darrel A. Posey, ed., Cultural and Spiritual Values of Biodiversity: A Complementary Contribution to the Global Biodiversity Assessment (London and Nairobi: Intermediate Technology Publications/United Nations Environmental Program, 1999) 177 [Agrawal]. 5 See Peter Drahos,, ‘Indigenous Knowledge and the Duties of Intellectual

294

6

7 8

9

10

11 12

Notes to pages 195–7 Property Owners,’ (1997) 11 Intellectual Property Law Journal 179 at 197 [Drahos]. 196. See Daniel Downes, ‘New Diplomacy for the Biodiversity Trade: Biodiversity, Biotechnology and Intellectual Property in the Convention on Biological Diversity’ (1993) 4 Touro Journal of Transnational Law 1; M. Gadgil and P. Davista, ‘Intellectual Property Rights and Biological Resources: Specifying Geographical Origins and Prior Knowledge of Uses,’ (1995) 69 Current Science 8; ‘The Impact of IPRs,’ supra note 1 para. 51(b); see also ‘The Elements of a Sui Generis System for the Protection of Traditional Knowledge’ (paper prepared by the WIPO Secretariat for the Third Session of The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore) WIPO Doc. WIPO/GRTFK/IC/3/8 (29 March 2002) paragraph 9 [‘Elements of Sui Generis’]. See discussions in chapter 3, pp. 81–6, 198–201. Although the Convention did not define the term ‘science’ or ‘scientific,’ it is quite clear that its use of terms ‘scientific’ and ‘technology’ in article 15 presupposes the Western paradigms of those concepts. It does not seem to matter in this regard that the Convention speaks of indigenous knowledge in terms of ‘innovations’ throughout the text. Referring to the shortcomings of article 15, Halewood observes that it ultimately vests control over genetic resources in the states and makes no mention of indigenous communities or individuals in that regard. See Michael Halewood, ‘Indigenous and Local Knowledge in International Law: A Preface to Sui Generis Intellectual Protection,’ (1999) 44 McGill Law Journal 953 at 989. See Kerry ten Kate and Sarah A. Laird, The Commercial Use of Biodiversity: Access to Biodiversity and Benefit-Sharing (London: Earthscan, 1999) at 4; see also GRAIN, ‘Biodiversity Rights Legislation, available at http:// www.grain.org/brl/ (accessed 5 August 2005). See chapter 3, pp. 87–9. See Peter Drahos, ‘Indigenous Knowledge, Intellectual Property and Biopiracy: Is a Global Bio-Collecting Society the Answer?’ (2000) 22 European Intellectual Property Review 245 at 246 [‘Global Bio-Collecting Society’]; see also the following: The Biological Diversity Act, 2002 no. 18 of 2003 (India), Rules and Regulation Implementing Act No. 8371 – The Indigenous Peoples’ Rights Acts of 1997 (Philippines); Biodiversity Law (Law No. 7788) of 23 April 1998 (Costa Rica); Decree on Biological Resources and Related Traditional Knowledge (Laos); and Proposal for Regime of Protection of the Collective Knowledge of the Indigenous

Notes to pages 197–201

13

14

15

16 17

18

19

20

21

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People (Peru); Protection and Promotion of South African Indigenous Knowledge Draft Bill. More generally, see WIPO Doc. WIPO/GRTKF titled ‘Traditional Knowledge – Operational Terms and Definitions’ (annex II). The Organization of African Unity, Draft African Model Legislation for the Recognition and Protection of Rights of Local Communities and Breeders, and for the Regulation of Access to Biological Resources, 1998. The sixth preambular paragraph reads, ‘Whereas, there is need to implement the relevant provisions of the Convention on Biological Diversity, in particular Article 15 on access to genetic resources, and Article 8(j) on the preservation and maintenance of knowledge, innovations and practices of indigenous and local communities.’ See RAFI, ‘Bioprospecting/Biopiracy and Indigenous Peoples’ (30 November 1994), available at http://www.etcgroup.org/article.asp?newsid =212 (accessed 15 October 2004). Article 8(j) of the CBD, reprinted in 31 I.L.M. 818 (1992). This position is quite obvious from a reading of article 8(j). See also Darlene Sambo Dorough, ‘Status and Rights of Indigenous Peoples In International Law: The Quest for Equity’ (Ph.D. thesis, Law, University of British Columbia, 2002) at 79. See Robert E. Johannes, ed., Traditional Ecological Knowledge: A Collection of Essays (Gland, Switzerland: IUCN, 1989) at 7 (warning against uncritical romaticization of traditional ecological practices, and decrying their representation as a flawless conservation experience; see also Roy Ellen and Holly Harris, ‘Introduction’ in Roy Ellen, Peter Parkes and Holly Harris, eds., Indigenous Environmental Knowledge and Its Transformation: Critical Anthropological Perspectives (Amsterdam: Harwood Academic Publishers, 2000), 1. See Klaus Seeland, ed., Nature Is Culture: Indigenous Knowledge and SocioCultural Aspects of Trees and Forests in Non-European Cultures (London: Intermediate Technologies Limited, 1997) for essays on diverse accounts of the sacred relationship between plants/trees and contemporary religiocultural indigenous societies in Guinea, Nepal, Japan, Thailand, India, and Sierra Leone, among others. See Mohammed Khalil, ‘Biodiversity and Conservation of Medicinal Plants: Issues from the Perspective of the Developing World,’ in Timothy Swanson, ed., Intellectual Property Rights and Biodiversity Conservation: An Interdisciplinary Analysis of the Values of Medicinal Plants (Cambridge: Cambridge University Press, 1995) at 243 [Khalil]. Chidi Oguamanam, ‘Localizing Intellectual Property Rights in the

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22 23 24

25

26

27 28 29 30

31 32 33

Notes to pages 201–4 Globalization Epoch: The Integration of Indigenous Knowledge,’ (2004) 11 Indiana Journal of Global Legal Studies 135. See Erica-Irene Daes, Protecting the Heritage of Indigenous Peoples (New York: United Nations Human Rights Study Series #10, (1997) para. 24 at 3. Among the relevant agencies are the FAO, WIPO, WHO, WTO, ILO, UNESCO, UNCTAD, UNDP, and UNEP. For the nature of hometown and voluntary associations and their integration into the dynamics of the indigenous sociocultural structure, see Rex Honey and Stanley Okafor, Hometown Associations: Indigenous Knowledge and Development in Nigeria (London: Intermediate Technology Publications, 1998). See Brazilian PL (Legislative Bill) N. 2.O57 of 23 October 1991. There are a number of other bills, including private member ones, currently circulating in the Brazilian Federal Congress that support the recognition and protection of the rights of traditional communities in regard to biodiversity conservation, etc. The proliferation of these bills detracts from the collective resolve of the indigenous communities. It also yields some degree of imprecision and confusion in terms of an agreeable implementation mechanism for protection and compensation for valuable indigenous knowledge. See also Community Intellectual Property Rights Protection Act of 1994 S. 184, 9th Congress of the Republic of the Philippines. See Allan Gutterman, ‘The North-South Divide Regarding the Protection of Intellectual Property Rights,’ (1993) 23 Wake Forest Law Review 89 at 94–5. See discussions in chapter 6, pages 208–14. See ‘Elements of Sui Generis,’ supra note 6 para. 8 at 4. See Duncan Matthews, Globalizing Intellectual Property Rights: TRIPS Agreement (New York: Routledge, 2002). See Boaventura de Sousa Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (London: Routledge, 1995) at 253; see also William Twining, Globalisation and Legal Theory (London: Butterworths, 2000) at 4; Anthony Giddens, The Consequences of Modernity (Palo Alto, CA: Stanford University Press, 1990) at 64. Sousa Santos, ibid. at 260. See generally Will Kymlicka, Liberalism, Community, and Culture (New York: Oxford University Press, 1989). See generally Rosemary J. Coombe, The Cultural Life of Intellectual Property Rights: Authorship, Appropriation and the Law (Durham: Duke University Press, 1998).

Notes to pages 204–7

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34 Sousa Santos, supra note 30 at 257. 35 See Leanne M. Fecteau, ‘The Ayahuasca Patent Revocation: Raising Questions about Current U.S. Patent Policy,’ (2001) 21 Boston College Third World Law Journal 69 at 93 [‘Ayahuasca Patent Revocation’]. 36 Sousa Santos, supra note 30 at 257. 37 See Khalil, supra note 20 at 233. 38 According to Reuben Olembo, the president of the Second Conference of Parties Meeting, ‘The implementation of article 8(j) was one of the major challenges raised by the Convention on Biological Diversity.’ See CBD Doc. UNEP/CBD/COP/6/7, available at http://www.biodiv.org/doc/ meetings/cop/cop-06/official/cop-06-07-en.pdf (accessed 26 October 2004). 39 See ‘Knowledge Innovations and Practices of Indigenous and Local Communities: Implementation of Article 8(j)’ (note by the Executive Secretary of the CBD for the Third COP, 4–15 November 1996), UNEP/ CBD/COP/3/19; available at http://www/biodiv.org/doc/meetings/ cop/cop-03/official/cop-03-19-en.pdf (accessed 26 October 2004). 40 Held at Brastilava, 1–15 May 1998. 41 For instance, because of the interconnected issues relating to article 8(j), the Working Group initiated a program for the integration of the relevant tasks of its program of work into the thematic program of the Convention. The executive secretary prepared a progress report on integration (UNEP/ CBD/WG8J/2/2), which was transmitted to the 6th COP after amendments (UNEP/CBD/WG8J/2/L.2) at the Group’s plenary session. 42 See annex to Decision IV/9 of the 4th COP titled ‘Program of Work on the Implementation of Article 8(j) and Related Provisions of the Convention on Biological Diversity,’ available at http://www.biodiv.org/decisions/ default.asp?dec=IV/9 (accessed 8 September 2004). 43 See Decision IV/9 of the 4th COP ibid., para. 1(a). 44 For instance, item six of the second meeting of the Working Group considered a note by the executive secretary of the CBD on Participatory Mechanism on Indigenous and Local Communities. See UNEP/CBD/WG8J2/4. A finalized draft of this item as proposed by the Sub-Working Group at the 4th Plenary Session, (UNEP/CBD/WG8(J)/2/L.6), was transmitted to the 6th COP. 45 See ‘Outline of Composite Report on the Status and Trends Regarding the Knowledge, Innovations and Practices of Indigenous and Local Communities Relevant to the Conservation and Sustainable Use of Biodiversity, and the Plan and Timetable for Its Preparation’ annexed to COP decision VI/ 10, available at http://www.biodiv.org/decisions/default.asp?dec=VI/10 (accessed 28 September 2002)

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Notes to pages 207–9

46 The subsequent phases will deal with the following: the relationship between biological, cultural, and linguistic diversity; the identification of national processes that may threaten the maintenance, preservation, and application of traditional knowledge; the identification of processes at the local and community level that threaten the maintenance, preservation, and application of traditional knowledge. 47 The listed categories are forests, dryland and steppes ecosystems, marine and coastal ecosystems, island ecosystems, mountain and valley ecosystems, inland waters, and arctic ecosystems. 48 See Paragraph 9 of decision VI/10 of the 6th COP on article 8(j), available at http://www.biodiv.org/decisions.default.asp?dec=VI/10 (accessed 18 October 2004). 49 See paragraph 2 of phase I of the Outline of the Composite Report, note 45 above, as adopted by the 6th COP. 50 See Rosemary J. Coombe, ‘The Recognition of Indigenous Peoples’ and Community Traditional Knowledge in International Law,’ (2001) 14 St. Thomas Law Review 275 at 282 and 284. 51 Ibid. at 285. 52 Ibid. at 284; for an elaboration of this phenomenon, see Chidi Oguamanam, ‘The Protection of Traditional Knowledge: Towards a CrossCultural Dialogue on Intellectual Property Rights,’ (2004) 15 Australian Intellectual Property Journal 34–59. 53 This initiative was at the instance of then newly elected director general of WIPO, Dr. Kamil Idris. 54 See WIPO Main Program 11, Global Intellectual Property Issues, WIPO Doc. A/34/2/WO/PBC/1/2. 55 See Fact-finding Missions on Intellectual Property and Traditional Knowledge (Geneva: WIPO, 2001) at 16 [FFM]. 56 See ‘Executive Summary of the Intellectual Property Needs and Expectations of Traditional Knowledge Holders’ in ibid. at 5. 57 Ibid. at 57. 58 Statement of Dr. Jacob Smet of the Papua New Guinea National Cultural Commission. For the report of the fact-finding mission to the South Pacific, see ibid. at 76 and n. 42. See Brian Noble, ‘Circumventing Customary Transaction: Blackfoot Tipi Transfers and WIPO’s Search for the Facts of Traditional Knowledge Exchange,’ contribution to monograph for Cambridge/Brunel Conference ‘Property, Transactions, Creations: New Economic Relations in the Pacific,’ University of Cambridge, Cambridge, U.K., 13–15 December 2001, critiquing the conceptual framework of WIPO’s fact-finding missions and noting that the true import of Smet’s view appears to have been missed by WIPO.

Notes to pages 210–13 299 59 For detailed narration, see FFM, supra note 55 box 2 at 59. 60 Ibid. at 59. 61 Ibid. at 60. The WIPO further notes that ‘contrary to a commonly held view, numerous TK holders indicated that exclusive rights and monopoly powers over informal innovations are not uncommon within indigenous and local communities.’ Ibid. at 62. 62 Ibid. at 63 63 (1995), 30 I.P.R. 209; see also FFM, supra note 57 at 64–5; Colin Glovan, ‘Aboriginal Art and the Protection of Indigenous Cultural Rights,’ (1992) 7 European Intellectual Property Review 227 at 214. 64 See FFM, supra note 55 at 232. 65 See Noble, supra note 58. 66 Ibid. 67 Ibid. 68 Ibid. 69 Ibid. 70 Ibid. 71 See Halewood, supra note 9 at 987. 72 See the WIPO Main Program 11, supra note 54. 73 See FFM, supra note 55 at 234–5. 74 Supra note 9 at 986. 75 Ibid. 76 See, for instance, the following decisions of the COP: III/14, para. 4; IV/9, preambular paras. 9 and 10 and para. 14. See also decision VI/10 of the 6th COP, supra note 48. 77 See paragraph 17 of COP decision IV/9, supra note 42. 78 The session was held in Geneva, 25 September–3 October 2000. 79 Available at http://www.wipo.int/tk/en/igc/index.html (accessed 8 September 2004). 80 See para. 31 COP decision VI/10, available at http://www.biodiv.org/ decisions/default.asp?=decVI/10 in which the COP ‘Invites the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore of the World Intellectual Property Organization to continue its efforts to promote the more effective participation of indigenous and local communities in its work …’ 81 See Main Program 10, Global Intellectual Property Issues WIPO Doc. WO/ PBC/4/2, available at http://www.wipo.int/documents/en/document/ govbody/wo_gb_ab/prg10.htm. 82 Ibid. 83 See WIPO Doc. WIPO/GRTKF/IC/2/5 titled ‘Survey on Existing Forms of Intellectual Property Protection for Traditional Knowledge’ (8 August

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88 89 90

91 92 93 94

Notes to pages 213–16 2001), available at http://www.wipo.int/documents/en/meetings/2001/ igc/document_2.htm. (accessed 22 October 2004); see also See WIPO Doc. WIPO/GRTFK/IC/2/7 titled, ‘Questionnaire on National Experiences With the Legal Protection of Expressions of Folklore’ 22 June 2001, available at http://www.wipo.int/documents/en/meetings/2001/igc/ document_2.htm (accessed 21 October 2004). See WIPO Docs: WIPO/GRTKF/IC/3/3 titled ‘Call for Comments on Structure of Proposed Database of Contractual Practices and Clauses Relating to Intellectual Property, Access to Genetic Resources and BenefitSharing,’ 28 February 2002; WIPO/GRTKF/IC/3/4 titled, ‘Structure of Proposed Database of Contractual Practices and Clauses Relating to Intellectual Property, Access to Genetic Resources and Benefit-Sharing,’ 17 May 2002, available at http://www.wipo.int/documents/en/meetings/2002/igc/index_3.htm (accessed 21 October 2004). See WIPO Doc. WIPO/GRTKF/IC/3/5 titled, ‘Inventory of Traditional Knowledge-Related Periodicals,’ 30 April 2002, ibid. See ‘Elements of a Sui Generis,’ supra note 6. The twenty-year reference locates the debate over the protection of traditional knowledge in the 1982 the WIPO/UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions. Both the Model Provisions and the 1992 Convention on Biodiversity are regarded as two major landmarks in that debate. See ‘Elements of Sui Generis,’ supra note 6 para. 4 and n10. The objectives as set out in article 1, taking into consideration the provisions of article 8(j). A sui generis scheme based on mainstream intellectual property rights may serve defensive purposes. See Dan Leskien and Michael Flitner, ‘Intellectual Property Rights and Plant Genetic Resources: Options for a Sui Generis System,’ Issues in Genetic Resouces #6 (Bonn: International Genetic Resources Institute, 1997), 27. See Halewood, supra note 9 at 961. See Leskien and Flitner, supra note 90 at 30. See supra note 58. Erica-Irene Daes, ‘Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples,’ UN Doc. E/CN.4/Sub.2/1993/28 (28 July 1993); see also Michael Blakeney, ‘The Protection of Traditional Knowledge Under Intellectual Property Law,’ (2000) 22 European Intellectual Property Review 251.

Notes to pages 217–9

301

95 An unofficial English version of Law No. 20 of Panama appears in WIPO Document OMPI/CRTK/SLZ/02/INF/3 of 5 March 2002. The Panamanian Law adopts a narrow and almost purist view of the traditional knowledge that are protected under that law’s sui generis construct. For instance, ‘[o]nly elements of traditional knowledge that remain intrinsically linked to the community that has originated them, would be protected under the sui generis system.’ See ‘Elements of Sui Generis,’ supra note 6 para. 39 at 18. 96 See article 85 of Biodiversity Law, Costa Rica, No. 7.788 of 1998. Part of the criticism against the Merck/INBio Bio Prospecting Agreement is that because of its focus on the economic exploitation of biological resources, the agreement does not adequately take into account the integrity of traditional knowledge and the interests of its custodians or practitioners. 97 See ‘Elements of Sui Generis,’ supra note 6 para. 4 at 3. 98 Ibid. para. 8. 99 See Noble, supra note 58. 100 See ‘Elements of Sui Generis,’ supra note 6 para. 14 at 6–7. 101 See Halewood, supra note 9 at 986, indicating that Western countries oppose the notion that intellectual property is a component of human rights; see generally, Lawrence R. Helfer, ‘Human Rights and Intellectual Property: Conflict or Co-existence?’ (2004) 22 Netherlands Quarterly of Human Rights 167–79. 102 In addition to the three broad theoretical justifications for intellectual property (i.e., labour/personality, reward/incentive, and contract), a fourth and emerging theoretical plank is yet to crystallize into a common theoretical identity. It adopts a critical perspective on orthodox theories of intellectual property rights in an attempt to redirect or transform intellectual property rights to instruments for attaining a social-policy objective of a balanced, just, and attractive cultural polity and society. See William Fisher, Theories of Intellectual Property’ available at http://www.law .harvard.edu/faculty/tfisher/iptheory.html (accessed 22 June 2005); see also Gregory S. Alexander, Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776-1970 (Chicago: University of Chicago Press, 1997) at 1. Regarding the arguments for social planning or public interest imperatives for intellectual property rights, see Julie E. Cohen et al., Copyright in a Global Information Economy (New York: Aspen Law and Business, 2002) at 3–60; see also James Boyle, ‘A Politics of Intellectual Property Rights: Environmentalism for the Net?,’ available at http://www.james-boyle.com/intprop.htm (accessed 20 October 2004).

302

Notes to pages 219–22

102 See generally James Boyle, Shamans, Software, and Spleens: Law and the Construction of Information Society (Cambridge: Harvard University Press, 1996); David Lange, ‘Recognizing the Public Domain’ (1981) 44 Law and Contemporary Problems 147; Wendy Gordon, ‘Introduction’ to Symposium on ‘Ralph Sharp Brown: Intellectual Property and Public Interest,’ (1999) 108 Yale Law Journal 1611–17; Ralph S. Brown Jr., ‘Advertising and Public Interest: Legal Protection of Trade Symbols,’ (1948) 57 Yale Law Journal 1165, reprinted in (1999) 108 Yale Law Journal 1619; Wendy J. Gordon, ‘On Commodifying Intangibles,’ (1998) 10 Yale Journal of Law and Humanities 135. 103 See ‘Elements of Sui Generis,’ supra note 6 para. 27 at 14. 104 See discussion in chapter 5 above, section titled ‘On Medical Pluralism.’ 105 For further insight, see Oguamanam, supra note 21. 106 See supra note 88 and accompanying text. 107 For diverse and comprehensive perspectives on developments and other debates in these regards, see Silke von Lewinski, ed., Indigenous Heritage and Intellectual Property: Genetic Resources, Traditional Knowlege and Folklore (The Hague: Kluwer Law International, 2003). 108 See text of the declaration, WTO document WT/MIN/01/Dec/1 adopted 24 November 2001, available at http://www.wto.org/english/thewto_e/ minist_e/min01_e/mindecl_e.htm (accessed 18 October 2004). 109 See ‘Elements of Sui Generis,’ supra note 6 paras. 34–57 at 16–24. 110 Ibid.

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Index

337

Index

Aboriginal peoples of Canada. See First Nations peoples (Canada) acupuncture 101–2, 122, 138, 274n16 Adelson, Glenn 48–9 Africa 3, 21, 22, 40–1, 63, 70–1, 89, 96, 100, 103–6, 115, 119, 125–6, 128, 136, 193, 202, 237n46, 260n139, 262n164 African Union (Organization of African Union) 89, 197 African Model Legislation for the Recognition and Protection of Rights of Local Communities, Farmers, Breeders and for Regulation of Access to Biological Resources 89, 197 Aginam, Obijiofor 99 Agrawal, Arun 18, 175, 176 agriculture 4, 5, 27, 41, 45, 56, 91, 155, 165, 213, 255n79, 282n97, 284n109 Ainu peoples 70, 247n192 Akerele, Dr. Olayiwola 97 allopathic medicine 9, 96, 99, 102–3, 105–6, 113, 140, 141, 190, 258n105. See also biomedicine Amazonia (Amazon) 39, 41, 177–8, 236n41, 236n46, 287n146. See also

Brazil Americas 3, 53, 67, 69, 70, 72, 75, 260n139, 262n164. See also North America; South America Anaya, James 21, 62 Andean Pact 89; Decision 391 on Common Regime on Access to Genetic Resources 197; Decision 486 on Common Regime on Industrial Property 197 Andean Region 236n41, 237n46 Anghie, Anthony 243n148 Angola 70, 291n185 anthropocentrism 42 Arctic 67 Argentina 72, 253n67 Aristotle 123 Asia 3, 22, 40–1, 53, 63, 67, 70, 102, 115, 120, 210, 237n46, 247n191, 262n164 Association of South East Asian Nations (ASEAN) 89; Framework Agreement on Access to Biological and Genetic Resources 89 astrology 101, 120–1, 142 Australasia 70 Australia 22, 75, 88, 99, 101, 185,

338

Index

223nn3–4, 292n203; Mabo v. Queensland 69, 224n4; Milpurrurru v. Indofurn Pty 159, 185, 210; Yumbulu v. Reserve Bank of Australia 159 Ayurvedic system of medicine 120–1, 124, 142, 151, 210, 266n57; practitioners 118 Bangladesh 88, 120, 259n128 Battiste, Marie 51, 123 Belgium 67, 101, 102 Belize 69, 253n67 Berne Convention for the Protection of Literary and Artistic Work, 177, 290n182 biodiversity: benefits 43–49; conservation 5, 7, 10, 13–14, 23, 27, 36, 53–6, 80–1, 83, 89, 146, 148–9, 154–5, 163, 186, 191, 197–200, 207, 209, 234n14, 236n41, 238n60, 274n13, 296n25; crisis 4, 40–3, 55; definition of 36–8, 233–4n2; and indigenous knowledge 18, 29, 35, 38–9, 57, 169; and intellectual property rights 87; loss 4, 41, 54–5, 286n144; of plants xiii, 10, 27, 32, 35, 38–9, 118, 126, 163; policy 89, 217; value 47–9 biological diversity. See biodiversity biological resources (bioresources) 23, 36–8, 44–6, 53, 55–6, 58, 60–1, 80, 89, 148, 156, 160–1, 195–7, 199, 235n22, 281n85, 301n96. See also genetic resources biomedicine xiii, 5, 9, 25, 27, 28, 31, 33, 38, 74, 95–6, 101, 105, 108–10, 112–15, 117, 127, 137, 140, 145, 174, 190, 257–8n102, 260n142. See also allopathic medicine

biopiracy 176–80, 198, 207, 286n144 bioprospecting 10, 88, 140, 177, 279n54, 301n96 biotechnology 4, 7, 39, 45, 155, 169, 179, 209, 235n27, 238n72, 285n122, 288n157 biotrade 10 Bird, Christopher 123 Blakeney, Michael 23, 292n203 Bolivia 69, 72, 89, 106, 253n67 Botswana 70 Brazil 56, 69, 72, 88, 154, 202, 246n177, 247n187, 273n4. See also Amazonia British Columbia (Canada) 47, 223n4, 246n183 Brush, Stephen 20, 22, 28, 278n54 Burkina Faso (Upper Volta) 259n128, 261n153 Burma 259n128 California (USA) 47 Cameroon 56, 253n67 Canada xv, 67, 68–69, 75, 99, 101, 166, 185, 205, 223n3–4, 246n177, 246n183, 259n134; Charter of Rights and Freedoms 223n4, 246n182; Constitution Act (1982) 223n4, 246n182; National Gallery 179 Canada Institute of Health xvi Canadian Bloodtribe (Blackfoot) peoples 210, 211, 216 Canadian Patent Act 166 capitalism 28–29, 50, 58, 278–9n54 Caribbean 63 Carlson, Thomas 27 Casas, Bartolome de la 62, 243n146 cases: Andrews v. Ballard 260n134; Delgamuukw v. British Columbia 223n4; Diamond v. Chakrabarty 165;

Index Lowell v. Lewis 288n156, 288n158; Mabo v. Queensland 69, 224n4; Milpurrurru v. Indofurn Pty 159, 185, 210; Pioneer Hi-Bred Ltd. v. Commissioner of Patents 166; Prévost v. Fabrique de la Paroisse de l’AngeGardien 179; Tol-O-Matic, Inc. v. Proma Produkt-Und Marketing GmbH 178–9, 288n158; Worcester v. Georgia 223n4; Yumbulu v. Reserve Bank of Australia 159 Catholic Church 130, 134–5 Central America 100, 106, 123, 237n46 Charter of Indigenous-Tribal Peoples of Tropical Forests (CIPT) 88 Chartrand, Harry Hillman 60 Cherokee Nation peoples 223n4 Chicago: Field Museum 287n146 Chile 69, 88, 106 China 45, 54, 70, 97, 102–3, 247n191, 259n128, 260n142, 262n165; dynasties 121 ‘circumpolar council’ 67 Cobo, Martinez 21 Cold War 61 Colombia 69, 72, 106, 236n41, 253n67; Gaceta Constitutional No. 127, 247n188 colonialism 21–2, 49–50, 55, 75, 260n139. See also postcolonialism commodification 156–7, 173, 174, 175, 200 complementary/alternative medicine (CAM) 98, 106, 149–50, 260n134, 262n162 Conference on cultural and Intellectual Property Rights (1993) 88, 154; Julayinbul Statement 88, 154 consumption (material) 53–4

339

Convention on Biological Diversity (CBD) 4–5, 11, 25, 31, 34, 38, 77, 80–1, 85, 89, 91, 146–50, 153, 155, 161, 163, 172, 188, 192, 205–6, 212–18, 220–1, 224n6, 231n85, 234n14, 235n22, 250n23, 254n70, 273n4, 275n19, 294n8, 300n87; Ad Hoc Open-Ended Inter-Sessional Working Group on Article 8(j) 206–8, 214, 251n29, 275n19; article 8(j) 5, 11, 81, 84, 88, 188, 195–200, 206–8, 212, 215, 275n19, 295n14, 297n41; article 15, 5, 10, 196–8, 294n9, 295n14; Conference of Parties (COP) 11, 81, 195, 200, 206–8, 212, 275n19, 297n41; Related Provisions of the Convention on Biological Diversity (the Working Group) 206–8, 275n19, 297n41, 297n44 Convention for the Protection of New Varieties of Plants (UPOV) 91 Convention for the Protection of World Cultural and Natural Heritage (1972) 281n83 Coombe, Rosemary 76, 84, 85, 208 Coordinating Body of Indigenous Peoples of the Amazon Basin (COICA) 87, 154; Regional Meeting on Intellectual Property Rights and Biodiversity 154 copyright 59, 83, 87, 159, 162, 163, 173, 181, 182, 183, 185, 216, 281n87, 291n185 Costa Rica 39–40, 72, 88, 106, 198, 236n41; Biodiversity Law 217 Côte d’Ivoire 261n153 Council of Europe 281n83; International Legal Protection of Cultural Property 281n83

340

Index

Crucible Group 27 Cultural Survival Canada 253n61 Daes, Erica-Irene 22, 86, 183, 201, 251n34 De Koning, Martine 22 Democratic Peoples Republic of Korea 97, 102–3, 253n67 Democratic Republic of the Congo 261n153, 291n185 Denmark 67, 72 DeShield, Carrol Ginger 228n46 Diaz, Augusto Willemsen 65 disease 9, 94, 99, 105, 117, 121–2, 124, 143, 232n102, 263n2, 263n11, 266n57. See also illness Dominican Republic 72 Dove, Michael 29 Downes, David 184 Drahos, Peter 18, 58, 157, 159, 191, 281n88 drugs. See prescription drugs Dutfield, Graham 30, 228n46 ecology 43 ecotourism 45–6, 239n73. See also recreational harvesting Ecuador 69, 72, 89, 106, 253n67 education 79, 91, 140, 250n17 Egypt 88, 265n32 Ehrenfeld, David 47 Ellis, Roy 23 El Nino Southern Oscillation (ENSO) 41 empirical medicine 265n26 England 264n21 enlightenment 52, 58 environment 64, 73, 155, 250n18; policy 43, 67, 79–80, 88, 224n6; protection 37

environmental impact assessment (EIA) 56 Equatorial Guinea 106, 261n153 Eritrea 253n67 Ethiopia 253n67, 261n153 Europe 9, 22, 40, 70, 101, 115, 164, 166, 178, 179, 205, 235n24, 264n21, 281n83 European Parliament 246n176–7 European Patent Convention 166 European Union (EU) 68, 179 extractivism 8, 9, 60 Farley, Christine Haight 185, 281n87 farmers’ rights 167, 169, 284n109 farming. See agriculture Farnsworth, Norman R. 44 Fecteau, Leanne M. 179 Fidler, David P. 189, 257n101 Fiji 72, 253n67 Finland 69, 247n190 First International Conference on Cultural and Intellectual Property Rights of Indigenous Peoples 154; Mataatua Declaration (1993) 87, 154 First International Congress of Ethnobiology (1998) 154; Declaration of Belem 154 First Nations (Canada) peoples 69; Four Directions Council 25 First Nations Territory of Nunavut 223n4, 246n183 Flitner, Michael 216 folklore 181–2, 209, 212–4, 251n34, 285n116, 289n170, 290nn181–2; policy 83–4, 182–3, 281n87 folk practices 14 food 10, 27, 45, 91, 155, 165, 207, 213,

Index 255n79, 282n97, 284n109; supply 44, 240n105 Food and Agriculture Organization (FAO) 91, 95, 167, 255n79, 284n110; Commission on Genetic Resources for Food and Agriculture (CGRAF) 213; Global System for Conservation and Sustainable Use of Plant Genetic Resources for Food and Agriculture 284n109; Treaty on Plant Genetic Resources 255n79 Fourth World 23, 54, 75. See also indigenous peoples (enclave) France 67, 101 free trade 43 G8 55 Gabon 291n185 Galilei, Galileo 140 Gambia 253n67 Gaston, Kevin J. 44 General Motors 159 genetically modified organisms (GMOs) 54 genetic resources 4, 6–7, 10–11, 27, 82, 89, 91, 94, 147, 148, 150, 163, 167, 170, 172, 195–7, 199, 200, 206, 235n22, 255n79, 284n109, 286n144, 294n9. See also biological resources Genetic Resources Action International (GRAIN) 154 genocide 66 Germany 54, 102 germplasm 26–27 Ghana 97, 103, 119, 259n128, 261n153, 291n185; National Centre for Scientific Research into Plant Medicine 103; Primary Health Training for Indigenous Healers

341

(PRHETIH) 103; Traditional Medicine Practice Act No. 575 103–4; Traditional Medicine Practice Council 104 Global Bio-collecting Society 281n88 globalism 55 globalization 12, 13, 203–4, 221 Goldwater, Carmel 124 Good, Charles 28, 101, 143, 263n2 Grace, W.R. 178 Gray, Andrew 50, 240n90 Great Britain 39. See also United Kingdom Greenland 67 Green Revolution project 54, 56 Grotius, Hugo 62 Guatamala 69, 72, 106, 253n67 Gupta, Amil K. 30, 159 Guyanas 41, 236n41 Halewood, Michael 169, 212, 215, 216, 294n9 Harding, Sandra 19 Harris, Holly 23 Harvard Mouse 166 Hausa peoples 125, 127, 228n47 healing practices 12, 28, 117–18, 122, 126, 129–44, 174, 176, 181, 220 health and health care 6, 8, 9–10, 12, 32, 45, 91, 112, 117, 143, 146, 155, 168, 176, 186, 220, 235n24, 257n100– 1; policy 31, 79, 92–110, 150, 187–90 Health Organization of the League of Nations 94 Helman, Cecil G. 129, 141, 269n109 Henderson, James 51, 123 herbalism 8, 39 herbal medicine 45, 97–9, 102, 104, 106, 119, 122, 127, 135, 138, 140, 235n24, 274n16

342

Index

herbology 118, 122, 265n35 herbs 27, 119–20, 132–4, 272n155 holistic (non-Western) world view xiii, 4, 50–1, 86, 137, 218, 240n90 Holocaust 63 homeopathy 101 Honduras 72, 106 Hong Kong 45, 259n128 Hughes, Justin 58–9 human rights 3–4, 22, 64–5, 68, 71, 78, 155, 248n198, 301n101 humoral therapy 124–5 Iceland 230n71 Igbos peoples 116, 125, 137 illness 95, 263n2. See also disease; theories of 114–18, 122, 124, 125, 127, 128, 133, 140, 143, 174, 257n101, 263–264n11 India 56, 70, 88, 97, 120, 151, 247n191, 253n67, 259n128, 275n30; Local Innovation Databases of the Society for Research and Initiative for Sustainable Technologies and Institutions (SRISTI) 276n32; Peoples Biodiversity Register 276n32 indigenous (traditional) knowledge: and databases / digital libraries 150–1, 213–4, 276n32; and intellectual property rights 7–8, 83–7, 90, 94, 145–90, 206–22, 251n34, 279n54; and international law 74–87, 80–1; nature of 14–18, 20, 23–6, 29–31, 38–9, 50–2, 56–7, 60, 111; protection of xiii–xvi, 3, 5, 6, 8, 10–13, 33, 36, 61–2, 73, 76, 79, 84–5, 87–91, 100, 136, 183, 191–222, 286n144, 296n25, 300n87, 301n95 indigenous peoples 21–3, 46, 165, 196,

212, 231n85; activism 67–8; artistic works 12, 82, 185, 210, 291n199; and biodiversity 7, 23, 35, 38–9, 49–50, 55–6, 80, 146, 155, 186, 191, 198–9, 207; common heritage 160–1; cosmology 8, 26, 28, 38, 112, 125; cultural (identity) integrity of xiv, 5, 11, 50, 72, 75, 91, 187, 193, 197, 199–202, 215, 218–9, 253n52; discrimination against 21, 64, 67; economy 28–9; enclave 3, 23, 63, 75, 193, 244n152 (see also Fourth World); health care 92–3, 186–90, 220; and international law 61–9, 71–3, 74–87, 90–1, 161, 188, 193–4; political independence of 3; population 23, 50, 230n83; renaissance 64, 204; rights 66, 68, 71, 75, 78–9, 81–2, 86, 94, 155, 247n187, 248n198, 252n51; selfdetermination 3–4, 64–6, 69–70, 74–5, 77–8, 87–8, 91, 146, 154–5, 186–7, 191, 193–4, 197, 202, 205, 218, 249n5, 292n203, 292n205; selfgovernment 3, 70, 223n4, 246n183, 252n51; and United Nations 65–6; and use of plants 120–6; world view 51, 86, 137, 240n90 Indigenous Peoples Seattle Declaration (1999) 154 individualism 58, 158 Indonesia 27, 97, 115, 236n41, 253n67 industrialization 4, 50, 200 Indus Valley 134 intellectual property (IP) 5, 6–7, 11–13, 20, 28–32, 57, 82, 87, 94, 111, 136–7, 144, 155–62, 192–5, 253n59. See also property, history of 58–61 intellectual property rights (IPRs) 6–7, 9–12, 14, 24, 26, 28–34, 35–6,

Index 82–4, 87, 139, 145–90, 242n137, 278n54, 287n146, 301n102 (see also patent regime); agreements 8, 13; conventional/customary/mainstream xiii–xiv, 58–61, 117, 137, 143–4, 191–4, 200–2, 274n6; crosscultural approach to xiv, 34, 205–22; indigenous 90, 173, 201–5, 208–22, 289n170; legal personality 159–60, 173, 202; ordre public 179–80, 204, 289n164, 289n167; public domain 158, 160–162, 170; secrecy regimes 202–203, 205, 210; sui generis 12, 29, 31, 34, 84, 90, 156, 165, 166, 167, 168–70, 172, 181, 184–5, 191, 194–5, 200, 213–22, 255n76, 300n89, 301n95 Inter-American Commission on Human Rights 71, 93, 109, 146, 147, 149, 153, 252n51 Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF) 11, 203, 212, 213–4, 247n187, 282n91 International Conference on Primary Health Care 96 International Consultation on Intellectual Property Rights and Biodiversity 87 International Convention for the Protection of New Varieties of Plants (UPOV) (1961) 165 International Cooperative Biodiversity Group (ICBG) 89 International Labour Organization (ILO) 65, 80; Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989) 21, 65, 71–2, 78–9, 82, 91–3,

343

109, 146–7, 153, 187, 243n145, 274n6, 274n9 international law 5, 22, 31, 32–3, 35–7, 56, 61–7, 71–3, 74–87, 95, 100, 161, 188, 193–4, 248n199, 257n101; Statute of International Court of Justice, article 38(1) 65 International Office of Public Health 94 International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRA) 91 International Undertaking on Plant Genetic Resources (IUPGR) 255n79, 284nn109–10 International Union for Conservation of Nature (IUCN) 239n73 International Union for the Protection of New Plant Varieties (UPOV) 166–9 Iraq 88 Issue of Discrimination against Indigenous Peoples 21 Japan 45, 70, 102, 152, 164, 166 Johannesburg Earth Summit (Rio+10) (2002) 79 Johnson, Martha 228n46 Joint Forum on the Protection of Folklore 83 Jordan 88 Judaeo-Christian tradition 51, 52, 113, 119, 141 Julayinbul Statement 88, 154 Kalahari Desert 70 Kalingas peoples 135 Kant, Immanuel 19 Kate, Kerry ten 39, 89, 235n27 Kazakhstan 96

344

Index

Kenya 70, 103, 105, 253n67; African Medical and Research Foundation (AMREF) 105; Medical Research Institute 105; Ministry of Health 105 Khalil, Mohammed 12, 30, 191 King, Stephen 27 Kingsbury, Benedict 22, 65, 75, 248n200 Klemm, Cyrille de 37 knowledge protection mechanisms 11 knowledge traffic 13 Koch, Robert 114 Kuhn, Thomas 18 !Kung (Zhun/twasi) peoples 70 Kurup, P.N.V. 266n57 Laderman, Carol 133, 142 Laird, Sarah A. 39, 89, 235n27 Lambo, Dr. T. Adeoye 104 land claims 69, 74–5, 79 Laos Peoples’ Democratic Republic 88, 97, 253n67 Latin America 41, 63, 124 Leskien, Dan 216 Lesotho 253n67, 259n128, 261n153 Little Bear 18, 229n63 Lucas, Richard 119 Maasai peoples 70, 105 Maclean, Una 127, 128, 137, 268n95 McNeely, Jeffery A. 37, 41 Madagascar 97, 99, 236n41, 261n153 Maddox, John 128, 131, 141 Mahler, Halfdan 97 Malawi 253n67, 291n185 Malaysia 241n124, 246n177, 253n67 Malchup, Fritz 164 Mali 70, 97, 106, 119, 246n177, 259n128, 261n153

Mann, Howard 25–5 Maori peoples 69, 224n4 market economy 8, 28, 42, 50, 58, 156, 201 Mataatua Declaration (1993) 87, 154 materialism 113, 140 medical pluralism xiv, 9, 31, 34, 93, 146, 190, 219–20 medicine man 128, 130, 131, 132, 133, 136, 140, 269n100. See also shamans Merck/INBio 88, 197–8, 217, 254n70; Action Group on Erosion Technology and Concentration (ETC Group) 198, 287n146; Bio Prospecting Agreement 301n96; Rural Advancement Foundation International (RAFI) 198, 287n146 Mexico xvi, 69, 72, 106, 123, 136, 236n41, 237n46, 253n67; Indian Arts and Crafts Protection Law 291n199 Mgbeoji, Ikechi 29, 30, 120, 170 midwife. See traditional birth attendant Miller, Loren 178, 287n146; ayahuasca patent 178 Moran, Karty 27 Morley, Peter: Culture and Curing 139 moxibustion 122, 138, 271n151 Mozambique 253n67, 261n153 Murdock, George 114, 115, 117, 263n11 Musée du Québec 179 Namibia 70, 253n67, 261n153 Nations, James 57 Native Americans 120, 122–4, 130, 136, 185, 210, 229n63, 289n163 natural law 62, 68

Index natural resources 50, 54–6, 69, 201 Navajo peoples 127, 132, 133–4 Near East 115 neem (Azadirachta indica) 178, 287n146, 288n154 Nepal 120 Netherlands 54, 67, 72 New Delhi (India) 275n30 Newman, Dr. Stuart 288n158 New South Wales (Australia) 47 New World 60 New Zealand 67, 75, 87, 223n3; Treaty of Waitangi Act (1975) 69, 224n4; Waitangi Treaty Tribunal 69 Nicaragua 69 Niger Republic 70, 134, 246n177, 261n153; Niger Delta Development Commission 248n196 Nigeria xvi, 70–1, 97, 99, 103–4, 106, 116, 119, 127, 128, 228n46, 248n196, 253n67, 261n153, 291n185; Aro Mental Hospital 104; National Institute for Pharmaceutical Research and Development 104; Traditional Medicine Council 104 Nisga’a Treaty (1998) 223n4, 246n183 Noble, Brian 211, 216 non-governmental organizations (NGOs) 76, 153–4, 178, 201 North America 40, 101, 115. See also Americas North American Free Trade Agreement (NAFTA) 241n123 North–South disagreement/divide 6–7, 40, 55 Northrop, F.S.C. 139 Norway 67, 69, 72, 247n190 Nuba 70 Nunes, Keith 63 Nung, Shun 122

345

Oceania 40 Ogoni peoples 70 Ojibwa peoples 137 Organization of American States (OAS) 68, 224n4, 252n51; Draft Declaration on the Rights of Indigenous Peoples 71, 86, 89, 91, 93; Draft Inter-American Declaration on the Rights of Indigenous Peoples 93–4 Pacific Forum (2000): Model Law for the Protection of Traditional Knowledge Innovations and Practices 90 Pacific yew (Taxus brevifolia) 42 Pakistan 56, 88, 120, 259n128 Panama 88; Article 15 of Law No. 20, 217, 301n95 Pan-American Sanitary Bureau 94 Papua New Guinea 230n71, 236n31, 253n67 Paraguay 69, 72 Paris 94 Pasteur, Louis 114 Patel, Surrendra 231n87 patent regime xiii, 6, 9, 20, 29, 31, 33–4, 73, 83, 117, 139, 142, 153, 158, 162–6, 174–7, 180–1, 183, 192–4, 214, 282n91, 282n97, 283n106, 285n122. See also intellectual property rights patents 6, 12, 59, 87, 137, 144, 148, 151, 152, 156, 157–8, 163, 167, 169, 173, 176–80, 183, 186–8, 190, 192–3, 195, 198, 200, 204, 215, 255n76, 278n50, 285n124, 287n146, 287–8n154, 289n163, 289n167 Pei, Wang 260n142 Pen Ts’ao 265n32

346

Index

Penang Conference (1992) 88 Perlman, Dan 48–9, 233n2 permaculture 232n101 Peru 39, 72, 89, 106, 253n67, 271n138 petroleum resources 71 peyote 120, 135 pharmaceuticals xiii, 4, 5, 39, 118, 126, 174, 282n97 (see also prescription drugs); corporations 88, 89, 170, 177, 197, 286n144 pharmocology 5, 10, 25, 28, 39, 94, 118, 122, 123, 140 Philippines 56, 88, 135, 202; Indigenous Peoples Rights Act (1997) 70 Phillips, David 256n92, 263n10 Phuket (Malaysia) 83 placebo 141–2, 188, 269n109 plant breeders’ rights (PBR) 162, 165, 166–7, 169, 172, 194, 283–4n106 Plant Patent Act (1930) 165 plants 4–5, 10, 26–8, 38–9, 147, 183; and African medicine 125–6; and Ayurvedic system 120–1; and the Bible 119–20, 265n31; economic value of 5; and humoral therapy 124; and Native Americans 122–4; and traditional Chinese medicine 121–2; use of 44–5, 52–3, 57, 91–2, 96, 106, 111, 114, 118–26, 133–4, 137, 140, 143–4, 148, 152, 159, 163, 168, 173–4, 176–8, 180, 186, 188, 199, 232n101, 265n32; patentability of 156, 165–170, 172–80, 186–7, 285n122, 289n163; policy 91; and Unani (Graeco-Arab) system 120 Plant Variety Protection Act (1970) 165 pollution 45 Polynesia 67, 75, 115

postcolonialism 3. See also colonialism prescription drugs 6, 38, 42, 45, 123, 168, 235n24. See also pharmaceuticals Prince, Raymond 129 property 58–9, 157–8. See also intellectual property Pygmy peoples 70 Quaker United Nations Offices (QUNO) 154 Quebec civil law: Appeal Court 179; Prévost v. Fabrique de la Paroisse de l’Ange-Gardien 179 rainforests 5, 39, 41, 54, 177–8, 237n46, 241n124, 287n146 Raven, Peter H. 41 recreational harvesting 45–6 reductionism 60 Reid, Walter 28 Renaissance 140 Rhot-Ariazza, Naomi 175 Rifkin, Jeremy 288n158 Rig Veda 120, 134, 266n57 Rio de Janiero 79–80, 273n4; Earth Summit (1992) 79, 224n6 Roseman, Marina 133, 142 Rosen, Walter G. 234n2 Russia 67, 69. See also Soviet Union Rwanda 27 Saami (Lappland) peoples 69, 247n190 Said, Hakim Mohammed 120 salt water or blue water theory 63, 76 Samoa 253n67 Santos, Boaventure de Sousa 204 Sao Tome and Principe 261n153

Index Scandinavia 67 science. See Western science Seattle 154 Second World War 63 Seychelles 253n67 Shaman Pharmaceutical Company 89, 197 shamans 6, 27, 128, 129, 132, 136, 137, 139, 178. See also medicine man Shine, Claire 37 Shiva, Vandana 50 siddha system 210 Sierra Leone 259n128 Sivin, Nathan 9 Solomon Islands 254n67 South Africa, xvi, 88, 103–5, 259n128, 261n154, 282n97; Bantu medicine men 104; Cape Florist Peninsula 40; HIV/AIDS 105, 168, 283n97; Homeopaths, Naturopaths, Osteopaths and Herbalists Act (1974) 104; Medical Research Council of South Africa 104; Research Group on Traditional Medicine (RGTM) 104–5 South America 40, 100, 106, 115, 123, 223n3, 237n46, 241n124. See also Americas South Centre 154 South Pacific Regional Consultation on Indigenous Peoples and Intellectual Property Rights 154 South Pacific Regional Environmental Program 90 Soviet Union 247n191. See also Russia Spain 251n29 Spaulding, Norman 60 Spicer, John I. 44 Sri Lanka 97, 120, 259n128 Stabinsky, Doreen 28, 278n54

347

Statute of Monopoly (1624) 164 Stepan, Jan 106 Stevenson, Michael xvi Stockholm (Sweden) 274n8 Strasbourg (France) 281n83 structural adjustment programs (SAP) 55 Sudan 70, 241n124, 246n177 Supreme Court of Canada, 180; Delgamuukw v. British Columbia 223n4; Pioneer Hi-Bred Ltd. v. Commissioner of Patents 166 sustainable development 47, 80, 85 Swaziland 259n128 Sweden 69 taboo 115, 125, 270n116 Tanzania 96, 105, 254n67 technology transfer mechanisms 5, 7 Texas (USA) 260n134 Thailand 102, 254n67, 259n128 Third World 33, 54–7, 74, 75–6, 89, 96, 236n41; Debt-for-Nature 241n115 Third World Network (TWN) 154 Tomlinson, Timothy R. 97 Tompkins, Peter 123 Tonga 230n71 trademark 12, 59, 87, 163, 173, 180, 183–5 Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement 8, 13, 163–5, 167–70, 172, 178, 179, 184, 203–5, 212, 215–16, 221, 255n76, 282n97, 289n164, 289n167; article 27 8, 178, 215, 284–5n116 trade secret 202–3 traditional birth attendants (TBAs)

348

Index

96, 103, 105–6, 127, 128, 268n96, 269n99 traditional Chinese medicine (TCM) 103, 121–2, 142; Yellow Emperor’s Internal Classic 122 traditional ecological knowledge (TEK) 18 traditional knowledge. See indigenous knowledge traditional knowledge of plant-based therapy (TKPT) 8–10, 12–14, 20, 26–8, 31, 33–4, 35, 73, 74, 90, 93, 111, 146, 147–8, 163, 170, 172–6, 180–4, 186–8, 191–5, 199, 204, 219. See also traditional medicine traditional medicine xiii, 5, 6, 8–9, 12–14, 26–8, 31–3, 39, 73, 74, 90, 92, 111, 126, 139–40, 142, 145–50, 152–154, 173, 181, 188–90, 193, 194, 210, 232n106, 235n24, 257n102, 260n134, 260n142, 261–2n160, 262n164, 263n10, 274n16. See also traditional knowledge of plantbased therapy; policy 95–100, 102–10 traditional resources rights (TRR) 12 traditional therapeutic culture (experience/method/practice) 5, 6, 8, 9, 31, 35, 95, 101, 103, 108–9, 111–112, 118–19, 123–4, 126, 139–44, 173, 181, 184, 186–8, 220, 257n102, 260n139, 272n164; practitioners (healers) 127–40, 176, 177, 181, 258n105, 261n154, 268n95, 269n97, 269n100, 271n138, 272n153; protection of 91–6, 142; psychosocial foundation xiii, 107, 112, 174

trance 135–6, 138 Treaty on Plant Genetic Resources for Food and Agriculture 167 Tuareg peoples 70 Turkey 254n67 Tunisia 291n185 Tunis Model Law on Copyright for Developing Countries (1976) 182 Uganda 96, 105 unani tibbi system 210 United Kingdom 141–2, 164, 259n134. See also Great Britain United Nations 4, 21, 54, 63, 65, 67–68, 75, 77–8, 85, 94, 146, 182, 201, 230n83; Agenda 21, 79–80; Charter 63–4, 244n152; Cobo Report (Problem of Discrimination against Indigenous Populations) 65–7; Declaration on the Granting of Independence for Countries and Peoples in General 63; Draft Declaration on the Rights of Indigenous Peoples 66, 71, 75, 81–2, 88, 91–4, 109, 147–8, 187–8, 245n170, 256n88; Draft Principles and Guidelines for the Protection of Heritage of Indigenous Peoples (1995) 86; Economic and Social Council 64, 66–7; Expert Meeting on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices (2000) 150; General Assembly 63, 66, 281n85; International Bill of Rights 64–5, 91; International Covenant on Civil and Political Rights (1966) (ICCPR)

Index 64, 78, 187; International Covenant on Economic, Social and Cultural Rights (1966) 64; Permanent Forum on Indigenous Issues 66, 207; Resolution on Permanent Sovereignty over Natural Resources 281n83; Universal Declaration of Human Rights (1948) (UDHR) 64, 78, 187; UN Conference on Environment and Development (1992) (UNCED) 79, 224n6, 273n4; UN Conference on Trade and Development (UNCTAD) 150, 153, 275n25; UN Development Program (UNDP) 83, 85, 154; UN Educational, Scientific and Cultural Organization (UNESCO) 83–5, 97–8, 182, 213, 281n83, 300n87; UN Environmental Program (UNEP) 80, 95, 297n41; UN Human Rights Centre 68; UN Human Rights Commission 66; UN Human Rights Committee 78; UN Sub-Committee on the Prevention of Discrimimation and Protection of Minorities 86; UN Working Group on Indigenous Populations (UNWGIP) 66, 68, 71, 80, 251n34, 256n88 United States xv, 6, 45–6, 58, 67, 68, 75, 99, 101, 123–4, 130, 152, 164, 166, 168, 178, 179, 180, 205, 223n3– 4, 238n72, 254n67, 259n134, 283n97, 284n110; Agency for International Development 89; International Cooperative Biodiversity Group (ICBG) 197; National Cancer Institute (NCI) 88, 197, 254n70; National Institutes of Health 88;

349

National Research Council (NRC) 43, 44; National Science Foundation 89; Patent and Trademark Office 180, 287n146, 288n158 United States Federal Circuit Court: Andrew v. Ballard 260n134; Tol-OMatic, Inc. v. Proma Produkt-Und Marketing GmbH 178–9 United States Patent Act 178, 288n156 United States Plant Variety Protection Act 166, 167 United States Surpreme Court: Diamond v. Chakrabarty 165 University of Cape Town 104 University of Pennsylvania; Morris Aboretum 97 urbanization 176 utilitarianism 43, 47, 237nn59–60 Van Boven, Theo 68 Vander-Zwaag, David xvi Vattel, Emmerich de 62 Vaver, David 164, 278n50 Venezuela 69, 72, 89, 106, 254n67 Vietnam 103, 254n67 Vitoria, Francisco 62, 243n146, 243n148 Vogel, Virgil 123 Washington, D.C. 234n2 Western science 9, 14–15, 25, 28, 31, 33–4, 38, 98, 108, 112–14, 140, 141, 142, 158, 201, 219, 228n50; nature of xiii, 6, 7, 16–20, 52–3, 60, 194, 195 West Indies 123 Westphalian state 62–3, 68, 70, 205 Wiessner, Siegfried 64, 66, 72, 85 Wilmer, Franke 23 Wilson, Edward 41, 44

350

Index

witchcraft 116, 264n21 Wood, Paul M. 36, 37, 43, 47 World Bank (WB) 54, 56, 71; Global Environmental Facility (GEF) 55 World Conference of Indigenous Peoples on Territory, Environment and Development 88; Indigenous Peoples Earth Charter 88 World Conservation Monitoring Centre (WCMC) 238n67 World Health Assembly (WHA) 96–7, 99–100, 109 World Health Organization (WHO) 44, 92, 94–104, 106–9, 149–50, 153, 188, 232n106, 257nn100–101, 260n134, 261–2nn159–60, 268n96; Collaborating Centres on Traditional Medicine 99; Framework Convention on Tobacco Control (FCTC) 99–100, 107; General Guidelines for Methodologies on Research and Evaluation of Traditional Medicine 97, 104, 105; Guidelines for the Assessment of Herbal Medicine 97; International Health Regulations (IHR) 99; International Sanitary Regulations. See International Health Regulations; Interegional Workshop on Intellectual Property Rights in the Context of Traditional Medicine 150; The Legal Status of Traditional and Complementary/Alternative Medicine 107; Monographs on Selected Plants 107; Protection and Promotion of Traditional Medicine: Implications for Public Health in Developing Countries 107; The Regulatory Situation of Herbal

Medicines: A Worldwide Review 107; Roll Back Malaria Program 119; Traditional Medicine Program (Strategy) 97–8, 274n16 World Intellectual Property Organization (WIPO) 11, 24, 26, 31, 34, 82–4, 147, 149, 153, 159, 182, 183, 201, 203, 205–6, 210–14, 217–18, 220, 274n8, 282n91, 299n61, 301n95; Asian Regional Seminar on Intellectual Issues in the Field of Traditional Medicine (1998) 152; Fact- Finding Missions on the Intellectual Property Needs and Expectations of Traditional Knowledge Holders (1998–1999) 152; Fact-Finding Missions on Intellectual Property and Traditional Knowledge (1998–1999) Report 25; Forum on Intellectual Property Policy and Strategy in the 21st Century 151; Global Intellectual Property Issues Division (GIPID) 25, 183, 208–9, 212; Health for All by the Year 2000 96; Intellectual Property Network 151–2; International Forum on Forest (IFF) 251n29; Model Provisions for National Laws on Protection of Expression of Folklore against Illicit Exploitation and Other Prejudicial Actions 83–4, 182–3, 213, 218, 218, 291n185, 300n87; Roundtable on Intellectual Property and Traditional Knowledge (1999) 152; Traditional Knowledge Digital Library (TKDL) 151, 152; World Forum on the Protection of Folklore 213

Index World Trade Organization (WTO) 154, 164, 241n123, 255n76; Doha Declaration of the 4th WTO Ministerial Meeting (2001) 221, 284n116 Yano, Lester 171 Yeman 254n67

351

Yoruba peoples 127, 128, 134, 137 Zaire (Congo) 41, 70, 236n41, 237n46 Zambia 96, 119, 261n153 Zhang, Dr. Xiaorui 274n16 Zimbabwe 105, 254n67, 261n153 Zulu peoples 137