1The Nagoya Protocol was adopted in 2010 and entered into force in 2014. It was intended to clarify the provisions of the Convention on Biological Diversity (CBD) in order to facilitate the exchange of biological resources by recognising the contributions made by local populations and provider States to enhancing the value of biodiversity. Fair and equitable benefit sharing should therefore contribute to the conservation of biodiversity, which is the primary objective of the CBD. This paper redefines the context in which the assumptions behind the drafting of the CBD were forged, with the aim of shedding light on the difficulties that the application of the Protocol faces today.

The CBD: a search for consensus to act

2The term biodiversity was coined by scientists seeking to defend nature and engage in public debate under the banner of conservation biology.1 In this form, biodiversity was immediately established as a political construct at the interface between the natural and social sciences. Although it did not yet feature this new term, the Convention on Biological Diversity, signed at the Rio Earth Summit in 1992, bears witness to this paradigm shift. In the United Nations arena, the aims were to counter the threat of erosion of biodiversity, to bring some order to the multiple agreements addressing certain aspects of the subject (wild species for CITES, wetlands and birds for the Ramsar Convention, food and agricultural plant species for the FAO, etc.), and to this end, to organise an international governance of biodiversity as a whole. Reconciling the different interests and world views of the various members of the United Nations and the lobbies accredited to participate in the negotiations has obviously been a very difficult task. Although biodiversity governance remains the subject of bitter negotiations, 196 Party countries have ratified the CBD since it came into force in 1993, and seem to have agreed on definitions, objectives, procedures, etc.

3The CBD defines genetic diversity as “the variability among living organisms from all sources”, which is taken to mean the interrelationships among species, with all their genetic variability, in various ecosystems. Consequently, the CBD aims to unite representatives of all the biological sciences – systematists, ecologists, geneticists, etc. – in a dynamic vision of the living world (Ducarme & Couvet, 2020). The three objectives set by the Convention also reflect the different approaches to nature that society has adopted: ethical, geopolitical, economic, etc. The CBD has been presented as the first convention on sustainable development that seeks to reconcile the economic, social and environmental dimensions, while embodying a project for society.

4The first objective – the conservation of biological diversity – harks back to the tradition of conservationists concerned with compiling inventories of species and keeping nature out of human activities, by assigning it a value in its own right. The second objective – the sustainable utilisation of its components – is familiar to ecologists and environmentalists. It recognises that humans are part of nature, and that nature must be managed properly so that it can continue to function in a sustainable manner and thus contribute to the well-being of societies. It is consistent with the concept of ecosystem sustainability. The third objective – the fair and equitable sharing of the benefits arising from the utilisation of genetic resources – refers to different conceptions of nature: by molecular biologists who study the expression of genes, by industrialists who see nature as a source of raw materials and innovations, by activists who denounce the exploitation of developing countries’ resources without compensation,2 and by the indigenous and local populations that act as custodians of their environments. There is a blatant contradiction between the first two objectives, which are expected in a convention designed to protect biodiversity, and this third objective, which has complicated the negotiations until now.

5Without this third objective, it is unlikely that the developing countries, seen as rich in biodiversity but poor in terms of their technical and financial capacities, would have agreed to conservation targets that could hamper their economic development. The definition in Article 2 – “Genetic resources: genetic material of actual or potential value” – confirms the terms of the bargaining. The notions of justice and equity, which are otherwise undefined, imply the sharing of the (presumably largely monetary) benefits derived from the exploitation of genetic resources, i.e. from the research and development efforts of researchers, and from the marketing of biotechnology products.

6By pursuing this objective of “fair and equitable sharing” (reiterated in Articles 8j and 15.7), the CBD distances itself from the formerly dominant biodiversity management policies, which were informed by the life sciences and based on sovereign solutions, such as the creation of protected areas (Compagnon & Rodary, 2017). This creates opportunities to use economic tools and intellectual property rights. It is no longer solely a question of conservation and use, but also of commercial exchanges. How did we manage to incorporate such conflicting representations of the relationships between living environments, science and society into a single convention?

7The Convention on Biological Diversity can be situated at the interface between several ongoing movements. On the one hand, progress in scientific knowledge is contributing to the rapid growth in the economy of the living world and the intellectual property rights that accompany it; on the other hand, the protection of biological diversity is inseparable from the defence of cultural diversity and the recognition of indigenous and local communities’ rights (Aubertin et al., 2007). This is indeed a clash between different visions of society.

The rapid rise of biotechnology and the appropriation of nature

The biotechnology revolution

8Scientific advances in knowledge of the living world accelerated in the second half of the 20^th century, with the discovery of the unity of living organisms when ACTG nucleotides were identified as the basic building blocks of the DNA molecule in 1953, followed by the dogma of molecular biology, which associates genes and biological functions, in 1957. Genomics developed throughout the 1990s and, as François Jacob pointed out in his acceptance speech at the Académie Française in 1997, the living world resembles the products of a gigantic Meccano set, reflecting the incessant tinkering that occurs during evolution (Hermitte, 2016). This dematerialisation movement continued with synthetic biology in the 2000s. New tools such as sequencing and barcoding have seen systematists and molecular biologists working together on the identification and classification of species (Mauz and Faugère, 2013). Access to information on genetic resources in the form of digital sequence data, as well as new genome editing techniques such as CRISPR Cas9 and its application to genetic forcing, are currently the subject of heated debate in conventions (see Chap. 16).

9The promises of biotechnologies, accompanied by their own speculative bubble, have given nature a new status. It is no longer considered as a purely philosophical concept or scientific term (Maris, 2018), but also as a reservoir of raw materials that can be appropriated, exploited, and profitably enhanced. In this case, we use the term “living world” to denote various biological resources that are studied and exploited for economic purposes. The living world is no longer considered solely as a gift of God or of nature when human intervention is required to reveal it.

The patentability of the living world

10The economic stakes are high. Access to genetic resources must be guaranteed, both in order to ensure food independence, as advocated by the FAO, and to sustain the booming biotechnology industry. In 2000, the Lisbon Strategy defined by the European Union was based on the “knowledge economy”: the control of knowledge and the tools of knowledge became an economic and commercial weapon. This “cognitive capitalism” requires the privatisation of knowledge based on registered intellectual property rights covering the intangible components of resources: genetic information, associated knowledge, etc. This dematerialisation of biodiversity is driven by economic issues (Aubertin, 2019).

11Slowly but surely, the scope of patentability – previously the preserve of the industrial world – has been extended into the living world. A patent confers upon its holder a temporary monopoly on the exploitation of the invention that it concerns. To be patentable, an invention (product or process) must meet the three criteria of novelty, inventiveness and industrial applicability. Although, from the outset, the processes used to perform a genetic modification (such as a gene insertion) were patentable, the living organisms resulting from these processes (such as GMOs) were not, just like any living organism found in nature. In 1980, a patent allowed by the U.S. Supreme Court on a genetically modified bacterium that was claimed to be able to break down oil (the Chakrabarty case) broke this barrier by recognising that the bacterium was a human creation. This opened the door to the extension of patentability to the plant and animal kingdoms. Since 1994, the European Patent Office has considered that if a new substance is discovered in nature and a process is developed in order to obtain it, then this process can be patented. Furthermore, if this substance can be adequately characterised by its structure, and if it is new in the sense that its existence was previously unknown, then it may be patented as such (Hermitte, 2016). This means that something that belongs in the public domain can become a patentable invention, giving its inventor an exclusive property right over an innovation which, when it originates from research on natural substances, is often the product of a collective process. Since its creation in 1995, the World Trade Organisation has required its members to protect their plant varieties with intellectual property rights. At an early date, it promulgated an article devoted to the trade-related aspects of intellectual property rights, and stipulating that an invention of a product or a process cannot be excluded from patent law merely because it is a living organism (WTO-TRIPS Art. 27, 1995).

12Patenting a molecule of interest derived from a plant confers exclusivity upon its inventor, without taking into account all of this plant’s interactions with its ecological context, or with the social and cultural context of the populations that use it. The long-term conservation and improvement of genetic resources carried out by indigenous and peasant communities is not recognised. The technical tools and institutions mobilised by research are also ignored. How can we distinguish between what belongs to nature, traditional knowledge, scientific work, technical tools, and the institutions and conventions that govern the transformation of living things? (Latour, 1999; Thomas, 2015). This privatisation of biological resources, which then lose their status as collective goods, is widely considered unacceptable. All the more so since patents do not provide any legal protection for “traditional knowledge” which is not new and is not the product of an inventive activity. This form of knowledge is passed down from one generation to the next, and does not have direct industrial applications.

13This “disenchantment of the world” studied by Max Weber, in which scientific and economic rationality is established as the main touchstone of the Western world, contrasts with another representation of the world, conveyed by the traditional knowledge of indigenous peoples.

Affirmation of biocultural diversity

14While the CBD recognises three levels of organisation of living things (genes, species, ecosystems), the ecological and indigenous rights movements, supported and informed by ethnoscientists, are imposing a new concept: the traditional knowledge of indigenous and local populations.

Ethnosciences and codes of ethics

15Ethnosciences study the knowledge systems of indigenous peoples, and how this knowledge structures the social ties between all living beings. In this way, they depart from the colonial approach of describing and collecting natural objects with little regard for their social environment and for the local representations and knowledge associated with them (see Chap. 2). These ethnosciences contribute to the critique of a science with universal pretensions based on the opposition between nature and culture (Descola, 2005). They are part of the post-colonial studies movement and call for the decolonisation of research and the abolition of the investigator/respondent relationship. They play a decisive role in linking ecology and traditional knowledge – now merged under the acronym TEK (Traditional Ecological Knowledge) – and in thus recognising indigenous peoples as natural protectors of the environment.

16In Latin America back in the 1980s, ethnobotanists and anthropologists used maps to highlight the strong correlation between areas of high biological diversity and those of high cultural and linguistic diversity, a phenomenon that would subsequently be described as “double conservation” (Dumoulin, 2003). These studies provide confirmation, if it were necessary, that the cultural survival of the Amerindians is inextricably linked to the protection of the Amazonian forest. Of course, this union is not devoid of certain misunderstandings on both sides, as Amerindian populations do not always live up to their reputation as guardians of nature endowed with all the ecological virtues of Western modernity (Conklin & Graham, 1995). Similarly, categorising them as “indigenous”, and reduced to cultural practices associated with lifestyles on the margins of the dominant society, is fraught with ambiguity (see Chaps. 7, 8). However, their geographical location is a decisive factor in this regard. Indeed, the strongest link between biological and cultural diversity is found in Latin America, where the use of the term “indigenousness” is a school of thought as much as a political weapon.

17It is worth noting that ethnoscience researchers, who were eager to share the results of their research and defend the rights of indigenous populations, were the first to establish codes of ethics to regulate their research. One example is the International Society of Ethnobiology founded by Darrell Posey, whose first congress in 1988 explicitly defined researchers’ and environmentalists’ responsibilities to meet the needs of local communities. The Declaration of Belem provided the first recognition of the central role of indigenous peoples in maintaining biodiversity, as well as the obligation to compensate them for the utilisation of their knowledge and biological resources (ISE, 1988). For these researchers, it is also a question of changing scientific practices, and the 17 principles of the Code of Ethics include the principles of prior informed consent and equitable sharing, which would later become PIC and MAT: the twin pillars of the Nagoya Protocol (see Focus 1).

Relevant knowledge

18Researchers involved in conservation science, meanwhile, were sensitive to economic analysis of biodiversity values in their desire to raise awareness of the importance of biodiversity.3 To enable the organisation of commercial exchanges, intellectual property rights for traditional knowledge were therefore advocated (Posey & Dutfield, 1996). Since patents are ill-suited to the specificities of local knowledge, a sui generis system of intellectual property rights was proposed under the name of “traditional resource rights”. Enhancing biodiversity and providing income for indigenous and local populations in return was consistent with the spirit of the major conferences on the environment.

19The 1972 Stockholm Conference on the Human Environment had previously revealed the difficulties of reconciling environment and development, with countries in the Global South denouncing the environmental policies proposed by the industrialised countries of the North as so many obstacles to their economic development. The issue of underdevelopment thus became established in conservation circles: it was impossible to promote biodiversity conservation without considering the conditions for the development of poor countries. The programmes of environmental movements (IUCN, Greenpeace, WWF) drew closer to “third-worldist” programmes, while international agencies (FAO, UNDP, UNEP, World Bank) began to devise development programmes incorporating environmental and social concerns. The Brundtland Report (1987) popularised the concept of sustainable development on the eve of the United Nations Conference on Environment and Development, at which the Convention on Biological Diversity was signed in 1992.

20The “traditional knowledge” associated with biodiversity is recognised in the preamble to the CBD as an important contribution, and of key importance to the conservation and sustainable use of biological diversity: “Recognising 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, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components […].” This paradigm is specifically found in article 8j: “Each Contracting Party shall, 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 their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices” (CBD, 1992).

21It should be noted that the aim here is to respect traditional knowledge insofar as it is of interest to the conservation and sustainable use of biodiversity, but not for its socio-cosmic, identity-related characteristics, linked to a cultural group.4 This instrumental vision, taken up by the Nagoya Protocol, would frequently be denounced thereafter.

Knowledge and political rights

22Today, the term “biocultural diversity” is gaining ground in the CBD negotiations. Within the major international conventions, the diversity of forms of existence and different ways of knowing are presented as indispensable to the creation of future alternatives to the Western mode of development that is depleting the planet’s resources. For example, the IPBES – Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services – defines indigenous and local knowledge as “practices and beliefs that reflect social and ecological knowledge about the relationships between living beings, including people, and their environment”. The IPBES further notes that “this knowledge can provide information, methods, theory and practice for sustainable ecosystem management” (IPBES, 2020). Local knowledge helps to re-enchant the world by proposing an alternative model for relating to nature, characterised by spirituality.

23The land and citizenship rights that Amerindians were unable to obtain through their local battles are now recognised at the international level, on grounds of their ecological legitimacy and the cultural diversity that is presented as an integral part of biodiversity. Claims concerning traditional knowledge of nature generate claims to rights and thus become a key political tool in the struggle to recognise the rights of indigenous communities in their own countries. (Foyer & Dumoulin, 2017).

24In this way, the CBD incorporates two types of positions based on knowledge of biodiversity: one relating to the knowledge economy, and the other concerning the recognition of political rights. Cognitive capitalism is pitted against cognitive anthropology and the CBD has chosen a market-based solution to reconcile these conflicting positions.

A distribution of rights for a market-based solution

25The injustices denounced by countries in the Global South were initially addressed in economic terms and analysed as an asymmetry of rights leading to a poor allocation of resources. Genetic resources were freely available, but the associated local knowledge was not protected, and the knowledge holders’ rights were not recognised, whereas industrial innovations were protected by intellectual property rights such as patents. Standard economic theory blames this on a lack of appropriation and a failure to assign a sufficiently high value to biodiversity, according to the “tragedy of the commons” developed by G. Hardin in his article (Hardin, 1988). The failure of the regulatory market meant that property rights must be defined, and market prices must be assigned. The acceptance of this doxa of standard economic theory was all the greater because it was disseminated in the 1980s when neo-liberal doctrines were at their peak, with examples such as Ronald Reagan’s policies in the United States, and Margaret Thatcher’s advocacy of the disengagement of the State to give free rein to market forces in the United Kingdom. It was also accepted by some NGOs and indigenous movements, because recognising indigenous peoples’ ownership of their resources and knowledge is supposed to protect them from biopiracy and enable the redistribution of wealth.

26This was indeed the vision defended by the authors of the CBD, which can be interpreted as a distribution of rights. In fact, the CBD maps out a market-oriented solution to environmental problems and in so doing defines three types of rights: the sovereignty of States over their biological resources (Articles 3 and 15.1); the recognition of intellectual property rights (patents) of the life sciences industries (pharmaceuticals, cosmetics) (Article 16.5); and the assertion and protection of the sui generis rights of local and indigenous populations over their resources and their knowledge (Article 8j). The fact that the CBD – a multilateral agreement – advocates a policy of contractualising access to biodiversity could be considered paradoxical. Access and benefit-sharing are thus organised on the basis of bilateral agreements: private contracts between the resource provider and the user to regulate bioprospecting (Aubertin et al., 2007).

A binding Protocol under the CBD

27It was not until 2000 that a Convention on Biological Diversity working group was tasked with addressing various issues associated with the implementation of the Access and Benefit-Sharing (ABS) mechanism. In 2002, the CBD Secretariat published the “Bonn Guidelines”, setting out the stages of the access and benefit-sharing process, with the emphasis on procedures for obtaining prior informed consent from providers of genetic resources and associated knowledge. The Guidelines encouraged the establishment of a single focal point and competent authorities in each State to oversee access authorisations and supervise negotiations. One appendix provided the elements for Material Transfer Agreements, and a second listed the expected monetary and non-monetary benefits. The wording that States subsequently chose for their national legislation remained very close to these Guidelines. However, the Coalition Against Biopiracy, led by an NGO – the ETC Group – did not support the Guidelines, considering that they promoted intellectual property and made indigenous peoples actors in the plundering of their own resources. The Coalition even awarded its “Worst Smokescreen” prize to the 2004 Guidelines at the Captain Hook Awards ceremony, held during each Conference of the Parties (COP) of the CBD.

28At the Kuala Lumpur COP in the same year (2004), it became clear that bilateral contractual agreements, which are inevitably unbalanced in the event of bilateral negotiations between an indigenous community and an industrial company, could not resolve the issue, and that moves towards a binding international regime needed to be made. A global, universal framework was therefore required: a seemingly paradoxical way to promote biological and cultural diversity, which is inherently localised and specific. This would become the Nagoya Protocol, signed in 2010 and effective on 12 October 2014.5 The EU immediately transformed the provisions of the Protocol into an implementing regulation,6 leaving member countries free to transcribe the Protocol into their domestic law, or simply implement the EU regulation designed to ensure that collections and research funding conform to the Protocol’s requirements. However, each member country was required to designate a competent national authority and specify the penalties for breaches of the due diligence principle.7

29France ratified the Protocol by adopting the Law on Biodiversity, promulgated on 8 August 2016 (see Focus 3).

Conclusion: a cumbersome initial framework

30Today, 131 countries have ratified the Nagoya Protocol. Considerable resources have been invested in its financial and organisational implementation, with each State being required to create its own structure for handling the files. The financial benefits recorded by the ABS Clearing House remain paltry, however, while procedures are becoming increasingly complex.

31It is therefore important to analyse the reasons behind these results that are so far removed from initial expectations, and to take a look at the assumptions underlying the CBD and the Nagoya Protocol. They can be summarised as follows: once property rights have been defined, the market must be placed at the service of biodiversity conservation; there is supply and demand for genetic resources and traditional knowledge; a knowledge economy combining technical knowledge and traditional knowledge of natural substances will usher in a new industrial era and generate significant financial benefits; traditional knowledge can be protected by intellectual property rights; local knowledge holders can be easily identified and recognised as legitimately entitled to sign contracts, both by their community and by local or national authorities.

32This cumbersome framework would soon be confronted with the realities encountered in the field.

References

33Aubertin C., Pinton F., Boisvert V., 2007 – Les marchés de la biodiversité. Paris, IRD Éditions.

34Aubertin C., 2019 – « Histoire de la loi pour la reconquête de la biodiversité et ses implications en Guyane ». In Fleury M. (ed.): Pharmacopées traditionnelles des Outre-Mer : de la Recherche à la Valorisation, 9^e colloque international sur les plantes aromatiques et médicinales de l’Outre-Mer, Éditions Gadepam: 369/380.

35Compagnon D., Rodary E., 2017 – Les politiques de biodiversité. Paris, Presses de Sciences Po.

36CBD – Convention on Biological Diversity, 1992 – https://www.cbd.int/doc/legal/cbd-en.pdf

37Descola P., 2005 – Par-delà nature et culture. Paris, Gallimard, coll. Bibliothèque des sciences humaines.

38Descola P., 2013 – Beyond Nature and Culture. Janet Lloyd (trad.), Chicago, University of Chicago Press.

39Ducarme F., Couvet D., 2020 – What does “nature” mean? Palgrave Communication, https://0-doi-org.catalogue.libraries.london.ac.uk/10.1057/s41599-020-0390-y

40Dumoulin D., 2003 – Local knowledge in the hands of transnational NGO networks: a Mexican viewpoint. Int. Soc. Sci. J., 55: 593/606.

41Foyer J., Dumoulin D., 2017 – « Objectifying traditional knowledge, re-enchanting the struggle against climate change ». In Ayuk S., Foyer J., Morena E. (eds): Globalising the Climate. COP21 and the climatisation of global debates, London, Routledge.

42Conklin B., Graham L., 1995 – The shifting middle ground: amazonian indians and eco-politics. American Anthropologist, 97 (4): 695/701.

43Hardin G., 1988 – The Tragedy of the Commons. Science, vol. 162, No 3859: 1243/1248.

44Hermitte M.-A., 2016 – L’Emprise des droits intellectuels sur le monde vivant. Versailles, Éditions Quae, coll. Sciences en questions.

45IPBES (Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services), 2020 – Glossary of terms. Available at: https://ipbes.net/glossary/indigenous-local-knowledge-systems

46ISE (International Society of Ethnobiology), 1988 – Declaration of Belem. http://www.ethnobiology.net/what-we-do/core-programs/global-coalition-2/declaration-of-belem/

47Latour B., 1999 – Politiques de la nature. Paris, La Découverte.

48Maris V., 2018 – La Part sauvage du monde. Paris, Le Seuil, coll. Anthropocène.

49Mauz I., Faugere E., 2013 – Les systématiciens à l’épreuve du barcoding. Revue d’anthropologie des connaissances, 7 (2): 433. 10.3917/rac.019.0433.

50Posey D. A., Dutfield G., 1996 – Beyond Intellectual Property: Toward traditional resource rights for indigenous peoples and local communities. Ottawa, Ed. International Research Center.

51Thomas F., 2015 – « Droits de propriété intellectuelle et “communs agricoles”. Comment repenser l’articulation entre biens privés, biens collectifs et domaine public ? ». In Vanuxem S., Guibet Lafaye C. (dir.): Repenser la propriété, Marseille, Presses universitaires d’Aix-Marseille, coll. Droits de l’environnement.

52Wilson E. O., Peter F. M., eds, 1988 – BioDiversity. Washington DC, National Academy Press.