Hostname: page-component-586b7cd67f-l7hp2 Total loading time: 0 Render date: 2024-11-27T20:26:26.591Z Has data issue: false hasContentIssue false
  • English
  • Français

Justice and the Convention on Biological Diversity

Published online by Cambridge University Press:  25 March 2011

Doris Schroeder  and
Thomas Pogge
Get access Rights & Permissions [Opens in a new window]

Abstract

Justice and the Convention on Biological Diversity

Doris Schroeder and Thomas Pogge

Benefit sharing as envisaged by the 1992 Convention on Biological Diversity (CBD) is a relatively new idea in international law. Within the context of non-human biological resources, it aims to guarantee the conservation of biodiversity and its sustainable use by ensuring that its custodians are adequately rewarded for its preservation.

Prior to the adoption of the CBD, access to biological resources was frequently regarded as a free-for-all. Bioprospectors were able to take resources out of their natural habitat and develop commercial products without sharing benefits with states or local communities. This paper asks how CBD-style benefit-sharing fits into debates of justice. It is argued that the CBD is an example of a set of social rules designed to increase social utility. It is also argued that a common heritage of humankind principle with inbuilt benefit-sharing mechanisms would be preferable to assigning bureaucratic property rights to non-human biological resources. However, as long as the international economic order is characterized by serious distributive injustices, as reflected in the enormous poverty-related death toll in developing countries, any morally acceptable means toward redressing the balance in favor of the disadvantaged has to be welcomed. By legislating for a system of justice-in-exchange covering nonhuman biological resources in preference to a free-for-all situation, the CBD provides a small step forward in redressing the distributive justice balance. It therefore presents just legislation sensitive to the international relations context in the 21st century.

Keywords

International JusticeConvention on Biological DiversityBenefit-Sharing
Type
Features
Information
Ethics & International Affairs , Volume 23 , Issue 3 , Fall 2009 , pp. 267 - 280
Copyright
Copyright © Carnegie Council for Ethics in International Affairs 2009

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Notes

1 Convention on Biological Diversity (CBD), 1992, Article 1: Objectives; available at http:\\www.cbd.int/convention/convention.shtml(accessed April 14, 2008).The resources covered by the CBD are animals, plants, microorganisms, and traditional knowledge. All examples used in this paper refer to plants. As a result, we shall refer to the protection of germplasm regularly, although this term does not, obviously, apply to traditional knowledge.Google Scholar

2 Ibid., Preamble.Google Scholar

3 Schroeder, Doris, “Benefit Sharing: It's Time for a Definition,” Journal of Medical Ethics 33, 2007, pp. 205–09.CrossRefGoogle Scholar

4 Convention on Biological Diversity, 1995Decision II/11, Access to Genetic Resources; available at http:\\www.cbd.int/decisions/?m=COP-02&id=7084&lg=0(accessed June 18, 2009).Google Scholar

5 This revision and the Clinton administration's role in imposing it are discussed inPogge, Thomas, World Poverty and Human Rights, 2nd ed. (Cambridge: Polity Press, 2008), pp. 131–32.Google Scholar

6 HUGO Ethics Committee, Statement on Benefit Sharing (2000); available at http:\\www.eubios.info/BENSHARE.htm(accessed June 18, 2009).Google Scholar

7 Shiva, Vandana, The Violence of the Green Revolution: Third World Agriculture, Ecology and Politics (London: Zed Books, 1991), p.257.Google Scholar Other activist academics and politicians who have highlighted the exploitative nature or unfairness of the first-come, first-served principle are Nijar, Gurdial Singh, In Defence of Local Community Knowledge and Biodiversity: A Conceptual Framework and the Essential Elements of a Rights Regime (Penang, Malaysia: Third World Network, 1996)Google Scholar; Mooney, Pat R., Seeds of the Earth: A Private or Public Resource? (London: International Coalition for Development Action, 1969)Google Scholar; and Egziabher, Tewolde Berhan Gebre, “The Convention on Biological Diversity, Intellectual Property Rights and the Interests of the South,” inShiva, Vandana, ed., Biodiversity Conservation: Whose Resources? Whose Knowledge? (New Delhi: Indian National Trust for Art and Cultural Heritage, 1994), pp. 198–215.Google Scholar

8 Srinivas, Krishna Ravi, “Traditional Knowledge and Intellectual Property Rights: A Note on Some Issues, Some Solutions and Some Suggestions,” Asian Journal of WTO & International Health Law and Policy 3, (2008), p.88.Google Scholar

9 Rolston, Holmes III, “Environmental Protection and an Equitable International Order: Ethics after the Earth Summit,” Business Ethics Quarterly 5 no. 4 (1995), p.746.CrossRefGoogle Scholar

10 Sridhar, R.andKarsten Wolff, Usha S., “Commodification of Nature and Knowledge” (paper presented at the National Conference on Traditional Knowledge Systems, Intellectual Property Rights and Their Relevance for Sustainable Development, Delhi, November 24–26, 2008), p.2; and Ribeiro, Silvia, “The Traps of ‘Benefit Sharing’,” in Burrows, Beth, ed., The Catch: Perspectives in Benefit Sharing (Washington, D.C.: Edmonds Institute, 2005), p.49.Google Scholar

11 The word “judicandum” is from the Latin: that which is to be judged. Compare Thomas Pogge, “Justice,” inBorchert, Donald M., ed., Encyclopedia of Philosophy, vol. 4, 2nd ed. (Detroit: Macmillan Reference, 2006), pp. 862–70.Google Scholar

12 Rawls, John, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1999[1971]), pp. 3, 513, and back cover.Google Scholar

13 Brown, Brendan F., ed., The Natural Law Reader (New York: Oceana Publications, 1960).Google Scholar

14 Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), p.281.Google Scholar

15 Brecher, Bob, Torture and the Ticking Bomb (Oxford: Blackwell Publishers, 2007).CrossRefGoogle Scholar

16 Rawls, , Theory of Justice.Google Scholar

17 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974).Google Scholar

18 Of course, people might object if he simultaneously demanded monopoly powers over his anti-diabetes drink for more than a decade.Google Scholar

19 It would go beyond the scope of this paper to explain the other two main concepts of justice—namely, corrective and retributive justice. But see Pogge, “Justice”.Google Scholar

20 SeeAristotle, , Nicomachean Ethics, trans.Rackham, Harris (Cambridge, Mass.: Harvard University Press, 1934), pp. 279–82.Google Scholar

21 Beveridge, William, Social Insurance and Allied Services (London: H.M. Stationery Office, 1942).Google Scholar

22 Pogge, , World Poverty and Human Rights; and Cole, Phillip, Philosophies of Exclusion: Liberal Political Theory and Immigration (Edinburgh: Edinburgh University Press, 2001).Google Scholar

23 General Assembly of the United Nations, Universal Declaration of Human Rights, 1948; available at http:\\www.un.org/Overview/rights.html(accessed April 15, 2008).Google Scholar

24 Frankfurt, Harry, “Equality as a Moral Ideal,” Ethics 98 no. 1 (1987), pp. 21–43; and Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986), pp. 217–44.CrossRefGoogle Scholar

25 “Prior art” is an expression used in patent law to describe all information in the public domain, which would be relevant to an applicant's claim of originality.Google Scholar

26 “EPO Neem Patent Revocation Revives Biopiracy Debate,” Nature Biotechnology 23 no. 5 (2005), pp. 511–12.CrossRefGoogle Scholar

27 See Schroeder, “Benefit Sharing”.

28 The issue of alleged excessive profits is a different matter outside the scope of this paper.

29 Schroeder, DorisandLasen-Diaz, Carolina, “Sharing the Benefit of Genetic Resources: From Biodiversity to Human Genetics,” Developing World Bioethics 6 no. 3 (2006), pp. 135–43; and Pogge, Thomas, “Testing Our Drugs on the Poor Abroad,” inHawkins, Jennifer S. andEmanuel, Ezekiel J., eds., Exploitation and Developing Countries: The Ethics of Clinical Research (Princeton, N.J.: Princeton University Press, 2008), pp. 105–41.Google Scholar

30 Jonge, Bram de andKorthals, Michiel, “Vicissitudes of Benefit Sharing of Crop Genetic Resources: Downstream and Upstream,” Developing World Bioethics 6 no. 3 (2006), p.152.Google Scholar

31 FAO (Food and Agriculture Organization of the United Nations), “1.02 Billion People Hungry,” news release, June 19, 2009; available at http:\\www.fao.org/news/story/en/item/20568/icode/; World Health Organization (WHO) and United Nations Children's Fund (UNICEF), Progress on Drinking Water and Sanitation: Special Focus on Sanitation (New York and Geneva: UNICEF and WHO, 2008)Google Scholar; available at http:\\www.wssinfo.org/en/40_MDG2008.html; and Fogarty International Center for Advanced Study in the Health Sciences, “Strategic Plan: Fiscal Years 2000–2003” (Bethesda, Md.: National Institutes of Health, n.d.)Google Scholar; available at http:\\www.fic.nih.gov/about/plan/exec_summary.htm.

32 Karwal, Roshni, “Policy Advocacy and Partnerships for Children's Rights,” 2008; available at http:\\www.unicef.org/policyanalysis/index_45740.html.Google Scholar

33 See note 7.Google Scholar

34 We are assuming here that the products derived from nonhuman biological resources would not be priced out of the range of some islanders through a system that gives monopoly powers to their inventors for a considerable interval of time.Google Scholar

35 It is beyond the scope of this paper to outline why today's international economic order is unjust. For a detailed justification of this claim, see Pogge, World Poverty and Human Rights.Google Scholar

36 While we argue that the CBD promotes justice, we do not maintain that it cannot give rise to new cases of injustice. For instance, a local community may be the originator of traditional knowledge, but an autocratic government could retain funds paid on behalf of the community to use for its own purposes. Or CBD funds could serve as window dressing for national governments unwilling to invest in essential services. See alsoSchroeder, Doris andChennells, Roger, “Benefit Sharing and Access to Essential Health Care: A Happy Marriage,” Medicine and Law 27 no. 1 (2008, pp. 53–69.Google Scholar