تنوع زیستی، مالکیت، و دانش بومی: بررسی چارچوب های حقوقی برای جامعه، کشاورزان، و حقوق مالکیت معنوی در آفریقا

Drafted between 1996 and 2000, the African Union's Model Legislation for the Protection of Indigenous Knowledge, attempts to redress the contradictory obligations of the international instruments affecting biodiversity, namely the Trade Related Intellectual Property Rights Agreement and the Convention on Biological Diversity, by establishing a new philosophical justification for farmers', breeders', and community rights. By approaching the question of property rights and farmers' rights from the perspective of the community, the African Model Law is able to establish a legal framework for access to biodiversity, benefit sharing, and intellectual property that satisfies the needs and requirements of African states by balancing the monopoly rights of breeders against the rights of indigenous communities.

Human beings depend on the natural world for their survival. For more than 10,000 years, plants have provided not just food for subsistence, but most of the raw materials to produce the goods which maintain and improve human life. While the twin processes of industrialization and urbanization have obfuscated our traditional dependence on natural production processes for survival–popularizing the belief in humanity's mastery over its natural surroundings–modern society continues to rely extensively on the products of nature. In some fields, recent developments highlight this dependence more clearly than ever before. Perhaps nowhere is this tendency more dramatic than in biotechnology, where recent advances have sparked a renewal of interest in the local biodiversity and indigenous knowledge of the Third World. Advances in biotechnology build both on the technical achievements of Northern scientists and the genetic diversity of Southern communities. The breeding of new seed lines in agriculture and the development of new pharmaceuticals in health care have traditionally depended on the availability of genetically diverse populations. The emergence of modern biotechnological methods, which allow the transfer of genetic material across species barriers, has only increased the potential value of biodiversity. Approximately one-quarter of all currently available prescription drugs are derived from plants, and more than half are developed from natural compounds. Yet less than one percent of all plants have been tested for medicinal properties ( Bryant, 2002, np). Many scientists believe that cures for a wide-range of conditions could be found in the genetic diversity of tropical and semi-tropical plants. Research on the rosy periwinkle (Catharanthus roseus) plant, for example, once native to Madagascar but no longer found in situ because of deforestation, led to the development of extremely effective treatments for childhood leukemia and Hodgkin's disease. 1 Scientists hope that similar “miracle drugs” may yet be found in the unexplored biodiversity of the Global South. As genetic resources have assumed increasing scientific and (especially) commercial value, debates over access to and ownership of biodiversity have intensified. Indeed, as the raw materials necessary to realize the promises of the “biotech revolution”, control over genetic resources is increasingly contested. Traditional knowledge, historically dismissed as ‘uninformed’ or ‘unscientific’, has simultaneously attracted increased attention, as academic and corporate researchers increasingly rely on the knowledge of local communities about the genetic diversity under their stewardship. The new interest in plant and animal genomes (and the tensions generated by the increased attention) is reflected in the key international instruments governing the debate: the FAO's International Undertaking (IU) on Plant Genetic Resources, the Trade-Related Intellectual Property Rights (TRIPs) Agreement and the Convention on Biological Diversity (CBD). In the context of international governance, the concepts of farmers' rights and community rights have been particularly contested, as the Third World attempts to develop alternative intellectual property regimes that balance the private rights of the innovator with the public rights of the community. Regional approaches have proven particularly popular, and countries in Latin America, Africa, South East Asia, and the South Pacific have collectively attempted to draft legislation to deal with the emerging issues and debates surrounding biodiversity and biotechnology.2 The African Model Law3 is perhaps the most ambitious of these efforts. It seeks to develop a comprehensive regional framework governing all aspects of biodiversity management, intellectual property rights, and protection of indigenous knowledge. The purpose of this paper is to explore the regional response in Africa to the challenges posed by the increasing economic importance of biodiversity. I begin by outlining the key components of the Model Law itself. My intention here, however, is not necessarily to provide a comprehensive review of the instrument—that has been accomplished elsewhere.4 Rather, I seek to understand the process by which the Model Legislation–as an alternative to the system of intellectual property rights and benefit sharing envisioned by the TRIPs and CBD Agreements–was articulated. How do the assumptions and worldviews on which the Model Legislation is constructed differ from those of TRIPs and CBD? And what are the implications of the Model Legislation for the construction of other regional and alternative regimes for promoting breeders' rights, community rights, and farmers' rights?

Debates over the African Model Law are likely to continue for the foreseeable future, as the competing interests in the developed and developing world square off over the appropriate weight to be afforded the rights of plant breeders, farmers, and local communities. However, while discussions continue, the process by which the Model Law was developed offers important insights into more general questions of governance. Whatever the final status of the Model Law itself, the process of its creation opened new social possibilities and positions unanticipated by either its advocates or opponents. Attempts by African governments, supported by international non-governmental organizations, to articulate an alternative framework for the protection of the rights of plant breeders, farmers, and communities have built on indigenous conceptions of property and community which were historically excluded from consideration in international negotiating fora. In the process, non-state actors were mobilized in ways that expanded their role in international trade and environmental discussions. The close ties forged between African governments and domestic and international non-governmental organizations were critical in mobilizing the material and ideological capacity for drafting and instituting the Model Law. Although African governments were always at the center of the process (operating primarily through the OAU's Scientific, Technical and Research Commission), NGOs like the Third World Network and GRAIN played a critical role in mobilizing international support for the legislation. At the same time, private actors in the corporate sector mobilized to oppose the legislation through international institutions like WIPO and UPOV. The central role played by non-state actors in the development (and in opposition) of the Model Legislation raises questions regarding the capacity of negotiators to account for the full scope of questions raised in discussions, particularly with respect to questions of international trade. The process of developing the Model Law was largely retrospective, focusing on the historical importance of local seed exchange and the cultural specificity of Africa in the world (e.g. the role of communities). This is, at once, the strength and the weakness of the Model Law. While it affords the Model Legislation a great deal of legitimacy among African constituencies, it simultaneously undermines its applicability to areas outside the continent. Relying primarily on a system of benefit sharing or capacity building founded on historical references to the role of the communities in African life might undermine the capacity of African states to develop new, innovative responses to emerging issues.