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International Journal of Heritage Studies
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Dilemmas of protection: decolonising the
regulation of genetic resources as cultural heritage
To cite this article: Martin Fredriksson (2020): Dilemmas of protection: decolonising the
regulation of genetic resources as cultural heritage, International Journal of Heritage Studies, DOI: 10.1080/13527258.2020.1852295
To link to this article: https://doi.org/10.1080/13527258.2020.1852295
© 2020 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
Published online: 22 Nov 2020.
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Dilemmas of protection: decolonising the regulation of genetic
resources as cultural heritage
Department for Culture and Society, Linköping University, Linköping, Sweden
This article argues that since genetic resources carry cultural significance to many Indigenous communities, the protection of genetic resources should be considered in relation to the protection of Indigenous cultural heritage. It compares international regulations of genetic resources and associated traditional knowledge to those of traditional cultural expres-sions, focusing particularly on the Convention on Biological Diversity (CBD) and its implementation through the Nagoya Protocol. The article discusses how attempts to decolonise the regulation of genetic resources are impeded by two dilemmas that have also affected UNESCO and WIPO’s attempts to safeguard traditional cultural expressions. The first dilemma concerns the problems of promoting Indigenous self-recognition within a system of governance based on national agency and sovereignty. The second dilemma concerns how international regulations are based on a Western ontology that polarises natural and cultural resources, which has resulted in a reluctance to address intellectual property rights within the CBD. Exploring parallels between the regulation of genetic resources and traditional cultural expressions provides new perspectives on the difficulties facing the decolonisation of the protection of Indigenous resources and the implementation of Indigenous data sovereignty.
Received 1 December 2019 Accepted 6 November 2020
Intellectual property rights; traditional knowledge; genetic resources; cultural heritage; indigenous data sovereignty
Divisions between natural and cultural properties are breaking down in numerous policy domains. Postcolonial or postdevelopment perspectives emphasise the way that this nature/culture dualism is received and opposed by marginalised groups who reject the dominance of this dualism in Western ontologies in the service of decolonisation. [. . .] Scholars and activists increasingly reject this basis for dividing conservation and safeguarding activities, with Indigenous Peoples particularly insisting that their own ontologies are better suited for local governance of meaningful places and landscapes. (Coombe 2017, 368–369)
Rosemary Coombe’s words reflect a growing recognition that the distinction between natural and cultural resources, inherent to the European history of science and knowledge, is detrimental to the protection of Indigenous rights. This is particularly true in relation to the protection of genetic resources and associated traditional knowledge. International initiatives, for instance the World Intellectual Property Rights Organisation’s (WIPO) formation of an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in 2001, signal that the international community also sees the protection of genetic resources and traditional cultural expressions as interconnected tasks that need to be coordinated (Robinson, Roffe, and Abdel-Latif
2017). In her insistence on the need to apply Indigenous ontologies to govern Indigenous resources,
CONTACT Martin Fredriksson firstname.lastname@example.org Department for Culture and Society, Linköping University, Linköping, Sweden
© 2020 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
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Coombe furthermore implies that the deconstruction of the culture/nature divide and the acknowl-edgement of Indigenous self-recognition are fundamental for decolonising the management of Indigenous peoples’ cultural heritage and natural resources.
Both of these considerations are central to the Declaration on the Rights of Indigenous People (UNDRIP), which was adopted by the UN in 2007 (Dutfield and Suthersanen 2019). UNDRIP affirms Indigenous rights to self-recognition and sovereignty in matters of internal affairs (UNDRIP Articles 3 and 4), and Article 31 of the declaration addresses this in relation to cultural heritage:
Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. (UNDRIP Article 31)
While acknowledging Indigenous peoples’ rights to control their own traditional knowledge, Article 31 also addresses the protection of cultural heritage and genetic resources as related issues, implying that controlling one’s genetic resources and traditional knowledge is an essential part of maintain-ing a lived cultural heritage.
Drawing on these insights, this article will analyse international legislation that seeks to safe-guard Indigenous communities’ genetic resources as a form of cultural heritage protection, and asks whether and how recent claims for Indigenous self-recognition and challenges to the nature/culture divide have informed such legislation. More specifically, it takes the Convention of Biological
Diversity (CBD) and its implementation through the Nagoya Protocol as an example to show how
a cultural heritage perspective can add a deeper understanding of the dilemmas that face the regulation of genetic resources. Genetic resources are, in this context, understood as non-human biological organisms – flora and fauna – that have been utilised for various purposes by Indigenous and local communities. This definition follows the approach of the CBD which excludes human genetics from its jurisdiction (Schroeder and Lasén-Diáz 2006). Looking beyond the distinctions between environmental and cultural resources feeds into a larger discussion about whether Indigenous rights can be protected by a colonial legal system that has, historically, been responsible for undermining those rights, and if an international order based on national agency and sover-eignty can allow for Indigenous self-recognition.
This article starts from the recognition that Indigenous people are still living under colonial conditions, as their rights to self-recognition are not fully realised in the settler colonial state. Consequently, it applies a decolonising perspective in the sense that, following Coombe’s opening observation, it acknowledges that colonial laws, ontologies and epistemologies are inadequate to protect Indigenous rights. It particularly relates to recent demands for Indigenous data sovereignty raised within a wide range of Indigenous rights groups. The US Indigenous Data Sovereignty Network defines Indigenous data sovereignty as ‘the right of a [tribal] nation to govern the collection, own-ership, and application of its own data’ (Montenegro 2019, 732). Indigenous data sovereignty is often associated with Indigenous communities’ refusal to be passive objects of governmental attempts to monitor their demography, health, education and social living conditions, and their demands to take part in the collection and use of such data for their own benefit. It can however also be applied to traditional knowledge. Drawing on the formulation from UNDRIP, Kukutai and Taylor (2016, xxii) describe Indigenous data sovereignty as an expression of ‘indigenous peoples’ right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as their right to maintain, control, protect and develop their intellectual property over these.’ Kukutai and Taylor’s characterisation of Indigenous data sovereignty not only emphasises Indigenous peoples’ rights to control their own cultural heritage, but also recognises that intellectual property rights play an important role in achieving such control. Consequently, this article applies the
concept of Indigenous data sovereignty as an analytical framework to discuss the protection of genetic resources, viewed in a cultural heritage context, in relation to intellectual property rights.
This study relies on a combination of secondary sources, analyses of legal texts relating to the CBD and the Nagoya Protocol, as well as on two interviews with three persons involved with negotiating or implementing the legislation, conducted in February and April of 2016. The first interview was conducted with two Australian government officials – one who had taken part in negotiating the Nagoya Protocol and one who was working on the implementation of the CBD in Australia. The second interview was held with a Swedish official who had been involved in the negotiations concerning both the CBD and the Nagoya Protocol. These interviews are not the object of analysis, but they provide a glimpse behind the scenes at the negotiations, contributing to a more comprehensive understanding of some of the considerations made by the legislators.
The cultural significance of biopiracy
The Convention on Biological Diversity was adopted by the UN in 1993. It was primarily an instrument of environmental protection, but it also came to include an acknowledgement of Indigenous and local communities’ rights to control genetic resources and associated traditional knowledge that has been in their custody for generations. This was further elaborated in the Nagoya
Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity, from 2010. While the CBD and the
Nagoya Protocol’s implications for the protection of genetic resources have been thoroughly analysed in a rich body of scholarly works, it is usually contextualised in relation to other regulations of genetic, biological or agricultural resources, but more rarely to cultural heritage regulations. This article addresses that gap as it discusses the formation of the CBD and the Nagoya Protocol in relation to the international governance of Indigenous cultural heritage.
One of the Swedish negotiators for the CBD describes the drafting of the convention as simultaneously influenced by the environmental and social justice debates of the 1980s (Interview with Swedish negotiator, 27 April 2016). On the one hand, environmentalists were alarmed over the extinction of a multitude of species across the world and called for an international convention that could take a holistic approach to the protection of global biodiversity. Developed countries wanted to place large biodiversity-rich areas under international protection, which worried the developing countries that saw it as colonial, and potentially very costly, interference in their national sover-eignty. On the other hand, there was growing concern over the question of bioprospecting, or biopiracy as it is sometimes called. In the 1970s and 1980s, ethnopharmacologists had looked to the traditional practices among Indigenous and local communities in biodiversity-rich developing countries for substances that could be developed into biotechnological innovations. This interest in the scientific and commercial applications of local genetic resources could serve several purposes. Hayden (2003, 32) argues that some ethnopharmacologists saw ‘“translating” traditional or folk medicine into chemical compounds as a mode of advocacy in itself’. Such ethnopharmacologists believed that ‘bioprospecting offers a chance not just to show the (pharmacological) value of traditional knowledge; it is also a way to turn this epistemological and biochemical correspondence into a revenue stream for the stewards of traditional knowledge themselves’ (Hayden 2003, 34).
Soon, however, bioprospecting turned into a lucrative industry as multinational corporations entered the scene, ushering in a wave of exploitation that Indigenous people and representatives of developing countries often saw as colonial theft of their traditional knowledge and genetic resources. In the early 1990s a discourse of biopiracy emerged to criticise how companies patent and appropriate genes, breeds and other natural resources whose uses were discovered or known, developed and deployed for centuries by Indigenous communities (Shiva 1998, 2007; Mooney 2000; Robinson, Drozdzewski, and Kiddell 2014). Apart from reinforcing global material injustices, biopiracy also has potential cultural repercussions since it tends to decontextualise resources – both the plants themselves and the locally held knowledge on how to use them – that play an important role in local traditions and cultures. There
are often cultural and religious values to these resources which are embedded in a holistic worldview that sees genetic resources as intrinsically intertwined with the social fabric of the community and makes no distinction between the natural and the cultural dimensions of the plant (Posey 2002; Oguamanam
2006). Those dimensions are neglected and violated when they are taken out of their context and commercialised as products for Western consumers (Shiva 1998; Robinson, Drozdzewski, and Kiddell
2014; Dahlin and Fredriksson 2017; Fredriksson 2017).
If it is hard to find examples where bioprospecting has really contributed to the social and economic development of Indigenous communities, there are numerous examples where Indigenous communities have objected to the patenting of their customary uses of genetic resources (for a thorough account of such cases, see Riley 2004; Robinson 2010). One case that particularly highlights the cultural significance of genetic resources is the University of Hawaii’s patenting of a variety of the Taro plant. The Indigenous people of Hawaii have cultivated Taro for generations and the plant holds a particular significance in their stories of creation where it is cherished as a part of their sacred ancestry (Robinson 2010; Robinson, Drozdzewski, and Kiddell 2014). The idea of someone owning their ancestors obviously caused offence and the patent was eventually revoked by the university.
The ownership of ancestry touches on a parallel but related discussion about the rights to human DNA. Two years after it came into force, the parties to the CBD agreed that human genetics are not covered by the convention. Since then, developments in genetic research have, however, made uses and appropriation of human genetics a contested topic. The critique against how DNA samples from Indigenous peoples are sourced and examined for their unique qualities in many ways corresponds to the biopiracy debates (Pullman and Nicholas 2011; Garrison 2012; TallBear 2013). This has raised questions of whether human genetics should be protected under the ABS provisions provided by the CBD, but this idea has so far been discarded (Schroeder and Lasén-Diáz 2006). While uses of human DNA pose theoretical and ethical questions that are fundamentally different from those associated with biodiversity and the ownership of non-human genes, the Taro case nevertheless implies that the manipulation and ownership of non-human genetic resources and human genetics are not as alien as they may appear, since both can be perceived as fundamental for the collective identity and integrity of a people.
While the Taro case ended in agreement it nevertheless highlights how, as Robinson (2010, 51) puts it, the ‘cultural embodiment and personification of plants has been largely ignored by [. . .] many legal or economic analysts.’ Even though not all plants carry such strong religious values, the cultural significance of the natural environment is fundamental to many Indigenous communities. When a coalition of Mãori tribes in the early 1990s petitioned New Zealand to pass constitutional protection of Mãori rights to manage and protect the Indigenous flora and fauna according to their customary laws, they emphasised that this flora and fauna is not merely an environmental resource but also a ‘cultural and customary heritage’ (Solomon 2004, 235). This example once more reinforces the main argument of this article: that genetic resources need to be viewed and protected as Indigenous cultural heritage that is threatened by biopiracy.
These concerns over the loss of biodiversity and the growth of biopiracy made their way into the negotiations preceding the CBD, which thus came to address both environmental and global justice issues. The CBD has three main objectives: ‘the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources’ (CBD Article 1). While the first two goals are clearly environmental, the third goal – which is known as the access and benefit-sharing (ABS) provision – aims to address the problem of biopiracy by guaranteeing that developing nations will get a fair share of the benefits that it creates (Greiber et al. 2012, 4; Oberthür and Kristin Rosendal 2014). The ABS provision is further developed in Article 15, which states that any actor who seeks to exploit a genetic resource must seek permission and reach mutually agreed terms with the state that holds that resource, and in Article 8(j), which calls for ‘the equitable sharing of the benefits arising from the utilization’ of Indigenous and local knowledge related to the uses of biological resources. The CBD was, however,
only a framework, and more detailed ABS regulations remained to be developed. In 2002, the parties to the CBD decided on a mandate to negotiate an international regime on ABS, and in October 2010 the Nagoya Protocol was adopted. The Nagoya Protocol provides tools to ensure that Indigenous and local communities can influence and benefit from the use of generic resources and associated traditional knowledge emanating from their land and culture. Most importantly it requires that a contract with mutually agreed terms shall be established to guarantee that resources are exploited in accordance with a set of conditions to which both parties have agreed (Tobin 2013; Oberthür and Kristin Rosendal 2014; Robinson 2015).
The Nagoya Protocol in this way provides a concrete framework to implement the ABS provision of the CBD through a set of rules and regulations aimed at preventing biopiracy. As this article will show, although the CBD and the Nagoya Protocol try to be consistent with UNDRIP’s conception of Indigenous self-recognition and appear to align with the principles of Indigenous data sover-eignty, they are nevertheless limited by a global system of governance that is based on national sovereignty and a nature/culture divide – a system of governance that also affects UNESCO and WIPO’s attempts to safeguard Indigenous cultural heritage.
Promoting indigenous self-recognition through national sovereignty
The Nagoya Protocol has been criticised for attempting to protect the rights of Indigenous communities by empowering states (Daly 2015). This relates to a complex interaction between local, national and international claims that had been on the UN agenda for more than two decades before the CBD came into force. A cornerstone of the CBD was to nationalise the ownership of genetic resources. Previous to the passing of the CBD, genetic resources had been defined as a ‘common heritage of mankind’ (Hemmungs Wirtén 2008). This common heritage doctrine grew out of a global social justice discourse of the 1960s and 1970s, and relied on the principle that certain resources belong to no one and should be free for everyone to use. The common heritage doctrine was first encoded in the UN’s Outer Space Treaty from 1967, the Moon Treaty from 1979, and the UN Convention on the Law of the Sea from 1982. Its initial applications, thus, were the deep sea bed, international waters and outer space (Buxton 2004). With the International
Treaty on Plant Genetic Resources for Food and Agriculture from 1983, the doctrine came to apply
also to genetic resources (Oberthür and Kristin Rosendal 2014).
Applying the common heritage doctrine to genetic resources was motivated by the assumption that global biodiversity is of universal concern and can be more efficiently preserved if germplasm from all over the world is freely collected and stored in gene banks. A cornerstone of the common heritage doctrine for genetic resources, however, was that it applied only to non-manipulated germplasm found in nature. Once scientists and breeders had manipulated the germplasm, the new varieties were no longer common heritage but the property of the breeders. This created what (Kloppenburg 1988 , 171) described as a ‘distinction between “elite” commercial germ-plasm as private property and “primitive” germgerm-plasm as common heritage’, which enabled industrialised countries to source ‘primitive’ germplasm from developing countries, manipulate it, and sell it back to those countries as scientific inventions that qualified for patent protection. Critics such as (Kloppenburg 1988 ) and Shiva (2007) argued that this not only reproduced a colonial extraction of resources, but also rested on a misconception, since the ‘primitive’ germplasm collected in the biodiversity-rich developing countries had in many cases been bred and improved by Indigenous people over generations. This germplasm is, as (Kloppenburg 1988 , 186) puts it, ‘not a free gift of nature, but is the product of millions and millions of hours of human labor’. This labour was however denied and made invisible by colonial discourses of knowledge production that contribute to the settler colonial state’s continuous erasure of the technological, cultural and agricultural achievements of precolonial civilisation (Kloppenburg 1988 ; Pascoe 2018).
Representatives of Indigenous people and the developing countries thus saw this use (or abuse) of the common heritage doctrine as a colonial practice, making their genetic resources a kind of
terra nullius – a no man’s land that could be freely appropriated by multinational companies
(Oguamanam 2006; Shiva 2007; Noyes 2012). In his 1987 book First the Seed, (Kloppenburg 1988 , 289) argued that the common heritage doctrine ‘may be intuitively appealing, but, even if achieved, would not necessarily bring material advantage to Third World nations’. Instead he suggested that nationalisation of genetic resources can be an alternative solution and that recognising ‘national sovereignty and the creation of compensatory mechanisms, on the other hand, would help redress a significant asymmetry in the economic relationship between the advanced capitalist nations and the less developed countries’ (Kloppenburg 1988 , 289).
The strategy to counter exploitation by empowering the nation states was put into practice with the passing of the CBD in 1993. In an attempt to prevent exploitative bioprospecting, the CBD broke with the common heritage doctrine by acknowledging the rights of sovereign states to control and refuse other parties access to genetic resources found within their borders (Wirtén 2008; Oberthür and Kristin Rosendal 2014; Rosendal and Andersen 2016). In this case, the national appropriation of genetic resources was intended to provide a tool to stifle more exploitative forms of privatisation, as it let states set the conditions under which foreign corporations may access the resources. When the common heritage doctrine failed to create a system of sustainable governance, the CBD tried to mitigate the damage of unregulated exploitation by empowering the sovereign state. This, however, gave rise to other social justice problems. In an additional chapter to the 2005 edition of First the Seed, Kloppenburg reflects on his position in 1987 and concludes that while the CBD met his call for national sovereignty over genetic resources, it failed to create global justice. Instead, it instituted a ‘wide range of bilateral, market-oriented arrangements’ and sanctioned an ‘ecoliberal, market-oriented regime for genetic resources’, which affirmed that ‘genetic resources may be bought and sold subject to current intellectual property law’ (Kloppenburg 1988 , 338). The emphasis on national sovereignty furthermore gave states legal control over genetic resources that had traditionally been in the custody of Indigenous and local communities.
The predominance of the state over Indigenous communities persisted in the Nagoya Protocol. Alongside the nation states – which constitute the official parties to the protocol – a wide range of NGOs and other non-state actors, from the biotech industry, the environmental movement, and the Indigenous rights movement, took part in the negotiations. Both the CBD negotiations and the process of drafting the Nagoya Protocol have been described as more inclusive than is usually the case in UN institutions, in the sense that a wide range of non-state actors were given access and were allowed to speak at the meetings (Interview with Australian negotiators, 26 February 2016). This did not, however, change the fact that only states are formal parties to the protocol, and NGOs and other non-state actors need the support of a state to influence the drafting of the protocol (Orsini 2014).
The legislative power thus remains with the sovereign states. The same can be said about the executive power, and Orsini (2014) argues that business interests are likely to have more influence on the national implementation of the Nagoya Protocol than Indigenous communities. One limitation in this regard is that the Nagoya Protocol does not force the member states to implement ABS regulations in their own territory, but merely requires its signatories to respect such regula-tions when and where they are in place. The Nagoya Protocol leaves it to each state to decide whether to regulate access to its biological resources. A state can thus choose not to regulate access and allow anyone to exploit its biological resources freely, without the consent of the traditional owners. This puts the rights of Indigenous communities into the hands of the state and its legislators, which may, as Angela Daly puts it, ‘disadvantage, for instance, neglected Indigenous communities whose governments do not bother protecting their traditional knowledge relating to genetic resources’ (Daly 2015, 376). When the same resources are found in different countries, attempts by one country to regulate access may be undone if the same resource is unregulated and
freely accessible in another country. A ‘race to the bottom’ may arise, in which the lowest level of protection sets the standard (Daly 2015, 373).
The CBD’s dismantling of the common heritage doctrine in favour of national sovereignty, and the strategy subsequently adopted in the Nagoya Protocol to protect the rights of traditional owners through national legislation, reflect a complex interplay of multi-level governance where global, national and local claims and responsibilities interact. Similar tensions between the local, national and international are inherent to cultural heritage management. Blake (2015, 12) points to how international cultural heritage law is consistently grappling with the question of ‘whether to characterise the heritage that merits protection as a cultural heritage of humankind, a “national treasure” or the source of value and identity to local and indigenous communities’. Uncritically embracing a view of traditional culture as a common heritage of humankind is problematic in settler colonial states, as it risks reproducing the colonial assumption that Indigenous resources are free for all to use. The potential conflicts between the proprietary claims of states and communities also become particularly urgent in relation to traditional cultural expressions. When Bolivia, in 1973, became one of the first actors to petition UNESCO for international protection of intangible cultural heritage, its main objective was, according to Hafstein (2014), to ensure that the Bolivian state could lay claim to traditional musical works performed by oppressed Indigenous people within the country’s borders. Ever since the 19th century, newly formed nation states have claimed folk culture as a fundament for national identity, often appropriating Indigenous cultural expressions for national purposes. Such tensions between communities and states remain present in the protection of intangible cultural heritage carried out by UNESCO. On the one hand, UNESCO often emphasises that intangible cultural heritage occurs in local communities and that a respect for those communities’ rights and interests should guide the preservation of such heritage (Blake 2019). On the other hand, executive agency lies with the nation states, which are the only actors who can formally nominate candidates for cultural heritage status (Lenzerini 2011; Lixinski 2011). Consequently, as Sheenagh Pietrobruno puts it: ‘the sovereignty of nation-states potentially strips communities and groups of the authority to define, determine and administer their intangible cultural heritage’ (Pietrobruno 2014, 745).
The protection of genetic resources and Indigenous cultural heritage is thus caught in the same double bind. While the CBD, UNESCO and WIPO all, to some extent, seek to address power asymmetries created over centuries of colonialism, they can only do so with the means available to the UN: international conventions implemented in national legislation. These means are inherently part of a global structure of governance created by and for sovereign states and colonial empires. As Macmillan (2013) argues, it is hard to make space for Indigenous independence and self-governance in the system of national sovereignty that emerged after the Peace of Westphalia in 1648, which laid the foundation for a new world order based on the independence of states. When the state is the only legitimate source of law, then the protection of cultural heritage, as well as that of genetic resources, relies inherently on a system of global governance in which states are the only actors with real decisive and executive agency (Macmillan 2013).
The question is to what extent it is possible to support Indigenous agency, self-recognition and data sovereignty within the premises of a legal system that has, historically, been so strongly associated with their disempowerment. Indigenous communities have, in accordance with UNDRIP Article 31, pointed out that their rights to traditional knowledge and traditional cultural expressions cannot be sufficiently protected unless their own customary laws are respected (Tobin
2013). To some extent the UN policymakers try to address this question by looking for ways to acknowledge the laws of Indigenous communities within national and international legislation. This was high on the agenda for WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore when it was formed in 2001. It has still not managed to explicitly acknowledge Indigenous law in a forceful way (Tobin 2013), but the
which was adopted by WIPO in 2005, at least acknowledge that the customary laws of Indigenous communities should be respected (Perlman 2011).
The first paragraph of Article 12 of the Nagoya Protocol, however, takes the accommodation of Indigenous self-recognition one step further by requiring national legislation to acknowledge Indigenous laws:
Parties shall in accordance with domestic law take into consideration Indigenous and local communities’ customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources.
Brendan Tobin argues that this makes the Nagoya Protocol the first legally binding international instrument that requires states to ‘take into consideration’ the ‘customary law’ of Indigenous peoples in its national legislation (2013, 147). In that regard the Nagoya Protocol goes some way to meet UNDRIP’s demands for Indigenous self-recognition. Saskia Vermeylen, on the other hand, is less convinced when she argues that Article 12 does not challenge the structure and predomi-nance of Western law: the formulation to take Indigenous law into account ‘in accordance with domestic law’ rather maintains a legal hierarchy in which national law still has authority over Indigenous law (Vermeylen 2013). Falling short of providing a paradigmatic reformation of international law, Article 12 of the Nagoya Protocol can nevertheless be seen as a subversion of national legislation that uses the legislative power of the state to enforce Indigenous agency.
Basing the protection of communities’ rights and resources on the principles of national sovereignty is thus nothing unique to the CBD or the Nagoya Protocol, and neither are the conflicts and dilemmas it might entail. These grow from more fundamental limitations entrenched in the relation between local, national and global governance that have underpinned international rela-tions since the 17th century and are also present in the protection of cultural heritage and traditional cultural expressions. The Nagoya Protocol has nevertheless made some progress when it comes to acknowledging Indigenous laws within the structures of Western law.
Genetic resources between cultural heritage and intellectual property
The circulation and ownership of genetic resources is primarily regulated through intellectual property rights in the form of national legislation and international conventions on patent law and plant breeders’ rights (Tvedt 2015). While intellectual property rights have traditionally not been a prominent issue in environmental protection, the growth of bioprospecting in the 1980s brought patents within the scope of the CBD. Yet intellectual property rights have become some-thing of a blind spot for the CBD and the Nagoya Protocol. The CBD briefly states that the parties shall cooperate to ensure that intellectual property rights ‘are supportive and do not run counter to’ the objectives of the convention (CBD, Article 16:5). Apart from that, the patent provisions included in the CBD were vague and the question of intellectual property rights was even less prominent in the Nagoya Protocol. The protocol mentions only in passing that the mutually agreed terms shall include ‘Terms on benefit-sharing, including in relation to intellectual property rights’. Apart from suggesting (in the Annexe to the protocol) that joint ownership of intellectual property can be one form of benefit sharing, the protocol makes no statement about how to approach intellectual property rights.
This omission was partly a consequence of the governing structure of the UN, where intellectual property rights are to be managed by WIPO and are considered off limits for the CBD, but it was also the result of strategic decisions and hard negotiations. Rosendal, Olesen, and Tvedt (2014) argue that there is an inherent conflict between intellectual property rights and access and benefit sharing since prospectors of genetic resources generally prefer strong intellectual property protec-tion, while provider communities call for strong ABS regulation. This conflict resonates at a global scale, where developed and highly technologised countries tend to benefit from strong, interna-tionally harmonised, intellectual property rights legislation while developing, technology-poor but
biodiversity-rich countries want their resources protected through ABS regulations. One of the reasons that the USA never signed the CBD, for example, was that it objected to the inclusion of ABS provisions and to the convention’s potential interference with patent law (Oberthür and Kristin Rosendal 2014).
The approach to intellectual property rights reflects different views of what the Nagoya Protocol is and what it is expected to do. While the USA, before it left the negotiations, wanted the CBD to be exclusively an environmental regulation, representatives of the developing world saw the CBD, and the Nagoya Protocol, as instruments of social justice which should protect the rights of the provider communities (Wallbott, Wolff, and Justyna 2014; Oberthür and Kristin Rosendal 2014). According to Wallbott, Wolff, and Justyna (2014) representatives of the developing world greeted the Nagoya Protocol as a new forum to address the need to protect traditional knowledge, after they had failed to create a sui generis protection for traditional knowledge within the jurisdiction of WIPO. Those expectations reflect how the regulations of genetic resources codified in the CBD and the Nagoya Protocol overlap with the field of Indigenous cultural heritage.
Many have characterised the ABS provision included in the CBD as a bargain between biodiversity-rich developing countries and technology-rich developed countries: a condition on which providing countries would allow developed countries continued access to their genetic resources (Greiber et al. 2012; Robinson 2015). The Australian interviewees argued that the provider countries merely saw the ABS agreement as the best they could get: ‘You’ve always had access. We can’t stop you having access. You’ve plundered all of our stuff already, so now turn on the tap and let the benefits flow’ (Interview with Australian negotiators, 26 February 2016). This description implies that the provider countries were just trying to get something out of an exchange they had historically been forced into, and saw no possibility of opting out of.
Both NGOs and alliances of biodiversity-rich developing countries tried to make global social justice a priority in the Nagoya negotiations (Wallbott 2014). Apart from pushing for ABS regula-tions, the representatives of the developing countries also brought intellectual property rights into the negotiations, since they saw how patent law and plant breeders’ rights can be tools of biopiracy. The EU and other developed countries, on the other hand, objected to any interference with the intellectual property rights system. While biodiversity-rich countries were keen to coordinate efforts to protect traditional knowledge with WIPO, the EU strived to shield other global institu-tions from interference (Wallbott 2014; Oberthür and Rabitz 2014). Addressing IRP thus became what Oberthür and Rabitz (2014, 84) describe as a ‘red line’ that the EU refused to cross. While the EU took a middle ground in the negotiations and accommodated some of the demands of the developing countries and Indigenous communities, it maintained a firm resistance to addressing intellectual property rights, which were consequently kept out of the Nagoya Protocol (Wallbott, Wolff, and Justyna 2014; Oberthür and Rabitz 2014). Many have argued that this puts the provider communities at a disadvantage when they are expected to enter into contractual relations with multinational corporations who have far superior financial and legal resources (Kloppenburg 1988 ; Shiva 2007; Tvedt 2015; Dutfield and Suthersanen 2019).
It is telling that the question of intellectual property rights is less present in the Nagoya Protocol than in the CBD, in spite of the fact that traditional knowledge is more emphasised in the Nagoya Protocol than in the CBD. The CBD only explicitly mentions knowledge in Article 8 (j), which requires the contracting parties to ‘respect, preserve, and maintain knowledge, innova-tions and practices of Indigenous and local communities’. The Nagoya Protocol, on the other hand, addresses such knowledge consistently throughout the document. Article 3 of the Nagoya Protocol states that the protocol ‘shall also apply to ‘traditional knowledge associated with genetic resources’, and thereby for the first time introduces ‘associated traditional knowledge’ as a concept in international law on genetic resources (Tvedt and Schei 2014). Traditional knowl-edge is thus an essential and inherent component of the Nagoya Protocol’s object of protection. Throughout the negotiations, it was an open question whether traditional knowledge would be regulated in one specific article or if would be handled as a ‘cross-cutting issue’ (Greiber et al.
2012, 137). The parties finally decided on the latter, and traditional knowledge came to be incorporated into various articles throughout the protocol.
The omission of intellectual property rights from the Nagoya Protocol shows how a body of international legislation based on a Western ontology that polarises culture and nature fails to grasp the full complexity of a resource that is equally material and immaterial. As a result of this polarisation, the different dimensions of genetic resources – that of scientific information and of cultural heritage – fall under different jurisdictions within the UN structure of governance. The need to protect traditional knowledge had been on the agendas of UNESCO and WIPO long before the passing of the CBD. The emphasis had originally been on protecting folklore as an expression of folk culture, but the discourse on traditional cultural expressions and Indigenous cultural heritage gradually shifted, bringing them closer to the understanding of traditional knowledge that was expressed in discourses on biopiracy. In the 1990s, traditional cultural expressions were increasingly seen as embedded in holistic cultural systems. A WIPO report from 1993, for instance, concluded that ‘A song, for example, is not a “commodity”, a “good”, or a form of “property”, but one of the manifestations of an ancient and continuing relationship between the people and their territory’ (Daes 1993, in Perlman 2011, 121). At the joint WIPO- UNESCO World Forum on the Protection of Folklore, held in Phuket in 1997, representatives of Indigenous peoples in Australia criticised the concept of folklore for being ‘narrowly defined’, arguing that it should not be limited to artistic expressions, but should also include ‘knowledge systems and biological diversity’ (Perlman 2011, 122).
As this new approach took shape, folklore came to be included in the definition of traditional knowledge. In 2001, WIPO presented a model in which folklore (i.e. cultural expressions) and Indigenous knowledge (i.e. environmental, medical and technical knowledge) together constitute ‘traditional knowledge’, which is, in turn, part of the entire cultural heritage of a community. UNESCO and WIPO’s recognition that traditional knowledge is embedded in a holistic world-view from which it cannot be separated, corresponds to widespread concerns over how biopiracy appropriates Indigenous peoples’ natural and cultural heritage and alienates it from its traditional context (Posey 2002; Oguamanam 2006). The instruments of protection for Indigenous cultural heritage, genetic resources and associated traditional knowledge thus emerged simultaneously, on similar grounds. Perlman (2011) concludes that ‘The indivisibility of traditional cultural expressions and traditional knowledge [. . .] also echoes the holism espoused by many in the Indigenous people’s movement, given global resonance by the drive to conserve the world’s biodiversity.’
Parallel to WIPO’s initiatives to protect traditional knowledge and traditional cultural expres-sions, UNESCO was formulating an agenda on safeguarding intangible cultural heritage, with partly overlapping goals and origins (Deacon and Smeets 2019). Similarities between the discourses on cultural heritage and genetic resources are further reflected in the fact that intellectual property rights were excluded not only from the governance of genetic resources but also from the intangible cultural heritage agenda in the 1990s. When Macmillan (2017, 679) compared the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage from 2003 to its precursor, the 1989 UNESCO ‘Recommendation on the Safeguarding of Traditional Culture and Folklore’, she observes that the latter ‘seems less interested’ in the possibilities of using intellectual property rights to protect intangible cultural heritage. While the 1989 recommendation highlights the ‘important work of UNESCO and WIPO in relation to intellectual property’ (UNESCO 1989, Article F(a)), the 2003 convention only briefly attests that the convention will not in any way affect ‘the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights or to the use of biological and ecological resources to which they are parties.’ (UNESCO 2003, Article 3(b)). Macmillan concludes that ‘implicitly, this provision might be said to draw a distinction between the forms of protection with which it is concerned, and the concept of private property protection through IP devices’ (Macmillan 2017, 676). This corresponds with Deacon and Smeets’ (2019) observation that the collaboration between UNESCO and WIPO over
the protection of intangible cultural heritage more or less came to a halt in the late 1990s, as the mandates of UNESCO and WIPO began to diverge.
This simultaneous reluctance to incorporate a stance on intellectual property rights in the regulations on both genetic resources and intangible cultural heritage is partly a consequence of a sectorisation within the UN, where intellectual property rights are positioned within the jurisdiction of WIPO. This is, however, not merely a matter of formality, but rather reflects how the sectorisation of international law, based on Western ontologies and legal traditions, outweighs Indigenous understandings of the resources that are to be protected. It is furthermore notable that the demarcation towards intellectual property rights seems to get stronger in the 1990s, which coincides with the more politically charged role intellectual property rights took, when they were placed under the jurisdiction of the World Trade Organisation with the passing of the agreement on Trade Related Aspects of Intellectual Property (TRIPS) in 1994 (Drahos and Braithwaite 2002).
By not addressing the topic of intellectual property rights, both the Nagoya Protocol and the Convention for the Safeguarding of the Intangible Cultural Heritage leave the intellectual property system intact and unchallenged. As a concession, the Nagoya Protocol offers an ABS provision that can, potentially, give the providing communities a share of the revenues that are generated by that property system. Referring to the colonial history of biopiracy, Cori Hayden describes access and benefit-sharing regimes, such as the one imposed by the CBD, as attempts ‘to turn a one-way process of extraction into a multidirectional form of exchange’ (Hayden 2003, 2). While this might offer traditional owners compensation for the resources they provide, it also raises questions about on whose terms and initiative that exchange takes place. Hayden (2003, 228) argues that:
Indigenous representatives have actively debated the merits of participation in the discussions around the UN Convention on Biological Diversity when the ‘price of admission’ (Dirlik 2001) includes acceding to the ‘propertization’ of both knowledge and plants. What, in other words, are the epistemological, symbolical and structural violence that accompany these idioms of inclusion and protection, even as they offer ‘empowerment’?
Hayden’s words highlight the risk that the empowerment offered by the ABS regimes can be preconditioned by the acceptance that resources of cultural, social and spiritual value are to be managed as commodities. This implies that a market-based solution to the protection of biodiver-sity enforces a one-dimensional definition of the resource that is blind to the cultural values genetic resources hold to their traditional owners (Dutfield 2017).
What is at stake here is thus not only the distribution of property, but also the very process of reification and commodification: of turning someone’s cultural and natural heritage into intellec-tual property. This raises the question of whose ontological system and model of governance should apply. For generations, the uses of plants and herbs have been managed and regulated through traditional knowledge and local regulations that are carefully adapted to control, circulate and maintain these plants within their original natural and cultural context. National and international legislation, on the other hand, requires the control of genetic resources and associated traditional knowledge to be compatible with legal jurisdictions that are inherently based on a Western nature- culture dichotomy that is alien to the traditional use and perception of these resources. The local Indigenous laws have thus been overruled by a Western property system that has been globally imposed, first through colonial laws and then through international regulations such as the TRIPS agreement and its global implementations of patents and plant breeders’ rights (Kloppenburg 1988 ; Drahos and Braithwaite 2002). This reluctance to challenge the status quo of intellectual property rights is potentially problematic both because the CBD and UNESCO miss the opportu-nity to influence the distribution of intellectual property, but also because it steers away from the more fundamental question of what it means to define genetic resources and traditional cultural expressions as intellectual property in the first place.
Comparing the protection of genetic resources to that of Indigenous cultural heritage has demon-strated how attempts to promote Indigenous self-recognition and data sovereignty are confronted by two dilemmas. The first dilemma can be traced back to a global world order based on national sovereignty where the protection of local communities can only be implemented through national legislation. While this leaves little room for Indigenous self-governance, both the Nagoya Protocol and UNESCO’s Convention for the Safeguarding of the Intangible Cultural Heritage nevertheless try to amend this by acknowledging customary law within their mandate. The second dilemma relates to how the Western property regime relies on a polarisation between culture and nature that does not acknowledge the social and cultural values of genetic resources and is alien to how the resources are used by the provider communities This is the root of the problem of biopiracy that the CBD and the Nagoya Protocol seek to address. The fact that the protocol almost entirely avoids interfering with intellectual property rights, and that similar tendencies exist in regulations of intangible cultural heritage, reflects how these regulations are trapped within a system of govern-ance that entrenches intellectual property rights as a secluded regulatory regime that cannot be addressed within neighbouring sectors.
Similarities between the regulations of genetic resources and those of traditional cultural expressions indicate that these dilemmas of protection go far beyond the protection of genetic resources. This brings us back to Coombe’s opening words about how challenging the nature/ culture divide embedded in Western ontologies and promoting Indigenous self-governance are intertwined cornerstones in the project of decolonisation. Even though these concerns are, to some extent, acknowledged in international discourses on the protection of genetic resources and traditional cultural expressions, they remain to be enforced in legislation. Finally, it becomes clear that national borders and jurisdictions, as well as distinctions between natural and cultural resources, become particularly problematic when applied to areas such as genetic resources, traditional knowledge and Indigenous cultural heritage that inherently defy both national and cultural borders and dichotomies.
No potential conflict of interest was reported by the author.
This work was supported by the Swedish Research Council and the Marie Skłodowska-Curie Actions under Grant [E0633901].
Notes on contributor
Martin Fredriksson [https://liu.se/en/employee/marfr31] is associate professor at the Department of Culture and Society (IKOS), Linköping University. In the past he has conducted research about the cultural history of copyright as well as the social and political implications of media piracy. More recently he has been working with questions regarding the privatisation of commons, spanning from extraction of natural resources, through biopiracy and exploitation of traditional knowledge to recent debates about the enclosure of the information commons. He is currently working more closely with how the regulation of cultural heritage and intellectual property intersects with regards to traditional knowledge and traditional cultural expressions.
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