- Memorandum: Reinventing Law for the Commons. A Strategy Memo for the Heinrich Böll Foundation. By David Bollier. Commons Strategies Group, 2015
"Biocultural Rights represent a new legal jurisprudence that aims to protect natural ecosystems and indigenous knowledge and ways of life, especially from the threats of trade treaties. The rights – based on the 1993 Convention on Biological Diversity, which has been ratified by 193 nations – have been developed by legal advocates such as Natural Justice in South Africa to give legal protection to a community’s identity, culture, governance system, spirituality and way of life as embedded in a specific landscape. This bold departure in human rights law gained particular momentum during negotiations over the Nagoya Protocol, at which African countries supported the idea of “Biocultural Community Protocols” as community-led instruments for recognizing and supporting “ways of life that are based on the sustainable use of biodiversity, according to customary, national and international laws and policies.”
Kabir Sanjay Bavikatte, a cofounder of Natural Justice, writes: “The emergence of biocultural rights forces a rethink of the conventional understanding of property as private property. Instead biocultural rights make a case for the right to commons by arguing that property need not be perceived purely as a thing that one has absolute rights over, but can also be viewed as a network of use and stewarding relationships amongst a number of rights holders. Within a rights discourse, biocultural rights can be contextualized as a subset of the third-generation group solidarity rights. The notion of stewardship is critical for a discourse of biocultural rights, for it provides the ethical content for these rights – whereby rights to land, culture, traditional knowledge, self-governance, etc. are informed by a set of values that are not anthropocentric but biocentric.” Bio-cultural rights are still a nascent legal concept, but variations on the idea have been incorporated into a number of international treaties and they have a solid grounding on many familiar legal principles.
A major international effort to facilitate “fair and equitable exchanges” of indigenous knowledge and culture is directed by the Intellectual Property Issues in Cultural Heritage (IPinCH) research project, an international collaboration of archaeologists, indigenous organizations, lawyers, anthropologists, ethicists, policy makers, and others. Based at Simon Fraser University in British Columbia, Canada, IPinCH explains that its focus is on “archaeology as a primary component of cultural heritage; however, this project is ultimately concerned with larger issues of the nature of knowledge and rights based on culture – how these are defined and used, who has control and access, and especially how fair and appropriate use and access can be achieved to the benefit of all stakeholders in the past.” The project includes fifty researchers and twenty-five partnering organizations from Canada, Australia, United States, New Zealand, South Africa, Germany, England, and Switzerland.
The Potato Park is a sui generis legal regime that empowers indigenous Quechua indigenous peoples in an area near Cusco, Peru, to act as stewards of a rich biodiversity of more than 900 genetically distinct potatoes that they have managed for millennia. The Quechua joined with a nonprofit group ANDES in the 1990s to develop a legal regime to recognize the Indigenous Biocultural Heritage Area (IBCHA), 12,000 hectares of traditional lands that the Quechua regard as essential to the agrobiodiversity of the region and to conserve their traditional culture, knowledge and livelihoods. Besides assuring a community-led and rights-based approach to conservation (rather than market development), the Potato Park seeks to prevent biopiracy of genetic knowledge by agro-biotech corporations. Although the Potato Park does not have state recognition within either Peruvian national law of the International Union for the Conservation of Nature, the IBCHA agreement is legally compatible with existing systems of national and international law, and is seen as an inspiration for similar projects to protect agrobiodiversity in the Andes.
The Traditional Knowledge Digital Library (TKDL) is an India-based database launched in 2001 that documents the knowledge and usage of traditional biomedical knowledge, plants and practices such as yoga, so that such knowledge cannot be patented. The goal of the project, as its website explains, is to “give legitimacy to existing traditional knowledge and enable protection of such information from getting patented by the fly-by-night inventors acquiring patents on India’s traditional knowledge systems. It will prevent misappropriation of Indian traditional knowledge, mainly by breaking the format and language barrier and making it accessible to patent examiners at International Patent Offices for the purpose of carrying out search and examination.”
Although defensive in character, aimed at preventing market enclosures of traditional knowledge, TKDL points toward more affirmative legal strategies for protecting useful agricultural or scientific knowledge as a commons. One example is the release of Open Source Seed Initiative (see section #5 below). Others include open-source-inspired technologies and licenses developed by the Australian nonprofit research institute CAMBIA and its BiOS project (“Biological Innovation for Open Society”), and the biohacking / DIY biology movement that is devising commons-based systems for the responsible, ethical and safe research in synthetic biology."
- An extensive overview of indigenous peoples’ law can be found in a web document by Steven C. Perkins, “Researching Indigenous Peoples’ Rights Under International Law,” at http://intelligent-internet.info/law/ipr2.html#Present%20Activities.
- “Biocultural community protocols and the Future of Conservation,” September 14, 2014, at http://blog.oup.com/2014/09/biocultural-community-protocols-future-conse... See also Kabir Sanjay Bavikatte and Tom Bennett, “Community Stewardship: The Foundation of Biocultural Rights,” Journal of Human Rights and the Environment 6(1) March 2015, pp. 7-29.
- Alejandro Argumedo, “The Potato Park, Peru: Conserving Agrobiodiversity in an Andean Indigenous Biocultural Heritage Area,” in Protected Landscapes and Agrobiodiversity Values, ed. Thora Amend et al. (Gland, Switzerland: International Union for the Conservation of Nature, 2008), 45-58. The IBCHA agreement does empower the Quechua societies to control scientific studies in the region and the Potato Park database can be used to thwart patent applications for indigenous medicinal plants and knowledge.
- Among the notable “participatory biology” networks and groups are DIYbio, BioBricks Foundation, Genspace, a community-based lab in Brooklyn, New York, and Bricobio, a biotech biohacker space in Montreal.