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Science, People and Politics, issue six, volume i, I (2009). November 2nd.

Genetic resources and law

Commentary built around the book. Genetic Resources, Traditional Knowledge and the Law, edited by Evanson Kamau and Gerd Winter.
by Helen Gavaghan

Earthscan, 2009.
Hardback price £80.00.

"Contrary to common Western assumptions, traditional ecological knowledge of indigenous people is scientific and holistic in that it is empirical, experimental and systematic," writes Jack Kaguu Githae, a medical herbalist in one of the chapters of this book edited by Kenyan lawyer, Evanson Chege Kamau, and Gerd Winter, a professor of public law and the sociology of law at The University of Bremen.

Githae has treated people in Africa and elsewhere for more than 20 years with herbal medicine. He writes that the empiricism in indigenous communities leads to a complex knowledge set of interwoven social and spiritual factors. It is a knowledge set, he says, that enables those living with that innate knowledge of an ecosystem to have a better understanding than Western science does of the consequences of disturbances in the ecosystem.

Githae may or may not be right. And Western science, at least of the academic variety, does make efforts now to be less reductive and cavalier in its approaches than in days gone by. But memories of those bygone days may still be fresh in the minds of those living in the regions with genetic resources that Western science -- both academic and industrial/commercial -- have the money, manpower and practical knowhow to develop now at industrial scales. Young western scientists or business executives might think what does the past have to do with me. Well nothing, but it is has everything to do with the lives the past has blighted.

The great endeavour today, then, is to create a new legal framework that is coherent, international, and interwoven with the national and regional groups, international law and with commerce and business.

And in doing that I do not think one can usefully assign superiority to one or other of the two different knowledge sets and ways of thinking -- Western science Versus traditional knowledge -- when exploring how best to exploit for humanity the value in ecosystems. But I do think one must understand deeply that there are different ways of apprehending, and that these different ways of knowing and exploiting the value in ecosystems might find themselves at loggerheads.

Better to slow down the process than to bulldoze ahead if the tension between the two knowledge sets makes each deaf to the other and so leads to loss of knowledge in either, knowledge which might just be critical to developing understanding further. What one group views as problematic against one way of seeing the world, loss of species, say, may not in practical terms actually be as problematic as it seems given the ecosystem. Then again the lost species might be the key to the whole system.

The starting point, according to the introductory essay by Kamau and Winter, for an international legal edifice to manage exploitation of the World's genetic resources is the Convention on Biological Diversity of 1992. Its underpinning concept is that genetic resources should be developed for the benefit of Mankind. This is not a wishy washy, feel good concept but an intellectual benchmark for hard and complex bargaining. It is not a concept one needs to move away from as the legal superstructure is built, but rather one which negotiators and diplomats need to embrace, questioning not the value to each party to the deal, but the value to the parties if the value for each party is evaluated against how the value they acquire feeds back into global communal life.

Taking the principle, as the law must if there is not to be anarchy and war, that what the law does to one it does to all, then one sub goal for evaluating whether a deal measures well against the benchmark of "for the benefit of all mankind" is how does one optimise so that the maximum number of people gain the maximum benefit?

If one defines benefit as local revenue enhancement over a maximum length of time such that it feeds constructively into regional and then collectively into global revenue enhancement and circulation then one might construct legal instruments compatible with the underpinning concept of the CBD, which is the same underpinning concept for Space law and The Antarctic Treaty System. And revenue enhancement means that one needs laws that do not work to diminish revenues enhancement by being lazy, needless and solely bureaucratic, as well as laws that safeguard life and limb (loss of life and limb diminishes the revenue stream). I am, by the way, writing in these terms so that people can have a tool for debate and law, not because I think there is an equivalence between money and a human being.

If every legal instrument developed in national or international law in relationship to the exploitation of genetic resources is evaluated on the basis of its overall value to deal making for the common good defined in this way then all the elements of the deal can be weighed singly and in combination against that benchmark. Law can be developed to aid the evaulation. If the local revenue stream of a rich country is enhanced without there being also significant revenue enhancement in poor countries then the enhancement in the revenue stream of the rich country is not sustainable. If instead of saying the fixed point is a minimum wage one says the end point we are working torward which will benefit all Mankind is an enhanced global revenue of X given that minimum wage, then what balance of rich and poor local revenue enhancement leads to X? This is where the hard bargaining comes in, providing the laws allowing exploitation and policing of commercial deals are in place.

This is a very powerful and useful way of measuring law against the benchmark of its compatability with the aim of being for the benefit of the whole of Mankind. Does the law fit with a suite of laws designed to enhance establishing maximum long term local revenue feeding upwards to regional and international revenue without diminishing anyone elses' efforts, or does it diminish local revenue? But the enhancement needs not to be a short term blip. If the law does harm to anyone then it diminishes local revenue. Taking such an approach might cut the intellectual Gordion knot formed from strands of iustitia commutativa and iustitia distributiva (fair deals and fair distribution) that Evanson and Winter set in tension, and so redress what Evanson and Winter call the negotiating asymmetries which disadvantage the resource State. The resource state being those with the genetic resources, which can be poor both financially and in numbers of trained negotiators. If the deal cannot demonstrate its compatabity with enhancing local revenue such that the global revenue enhancement does not undermine or prevent reasonable local revenue enhancement elsewhere then it is no deal.

Though this book was published in spring this year its essays are based on a workshop held in Bremen in 2008. No doubt the negotiations will have advanced since then, but the matters are deep and complex and this book is a reference and intellectual scratch post for anyone wanting to participate in the debate about how global legal infrastructure and superstructure might develop.


Typos corrected on line within 24 hours of publication, in line with the magazine's original stated policy, and two additional typos caught within an additional 24 hours. I developed the arguments in the commentary in response to the content of the book, and I would be grateful if anyone could draw to my attention any additional reading of work by others who have developed a similar argument. Press F5 to be certain you have the version corrected for typos. Helen Gavaghan, 4.11.09.