Munoz Sanchez Adriana
PhD student in Law, EHESS
Postgraduate program: Health, Population and Social Policies, EHESS
Scholarship from the European Commission Phoenix Erasmus Mundus Doctoral Program on Dynamics of Health and Welfare
Dissertation title: Circulation of knowledge on biological resources, mobilization of the actors, and an analysis of the controversies over the categories of law and sociology of law
Under the supervision of Maurice Cassier
Nowadays the discussions about the protection what is called “traditional knowledge” are of significant importance in fields such as economics and policy making. Biodiversity, public health, international trade, and scientific research constitute areas in which this particular type of knowledge is increasingly valued.
A large number of concepts underlie the idea of traditional knowledge, which includes traditional medicine as well as the whole of knowledge related to ecology and to peoples’ cultures. Although it is true that since the 1960s indigenous and tribal populations have drawn the attention of the international community, in particular of the International Labour Organization, traditional knowledge has only recently become a subject of interest in international organizations, under very specific perspectives. In this area, concerns related to biological diversity are an important opening onto the legal protection of this knowledge.
The 1992 UN Convention on Biological Diversity recognizes that the life of indigenous communities and other local populations is closely related to the biological resources available to them within the framework of their relationship with the world. The increasingly frequent occurrence of overexploitation of these resources by and/or for third parties, as well as these populations’ situation of vulnerability, now warrant legal intervention for a better distribution of the resources. Under this perspective, the Convention recommends that Member States protect traditional knowledge (Article 8.j).
Although it is true that dealing with these problems involves the communities of all the continents, the case of Latin America is interesting to analyze in many respects. On the one hand, Latin America has enormous biological diversity, and knowledge of the plants is held by the indigenous people. On the other hand, since the 1980s, the emergence of participatory-democracy discourse has contributed to making the claims of indigenous movements visible in the international arenas. Nonetheless, effective legal tools intended to protect diversity have so far remained very vague, not to say non-existent.
On a regional scale, the subject was taken into account in 1996 when the Andean Community (CAN) promulgated Decision 391 on genetic resources. In its wake, a group of experts on traditional knowledge was formed under the CAN.
The subject has been highly controversial because of the pharmaceutical industry’s interest, in particular, in exploiting the benefits of the plants and biological organisms. This situation largely transcends the local framework of action of the states to fall under more global scenarios. This is why organizations such as the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) are now considered influential actors in the balance of power between, on the one hand, the holders of traditional knowledge, who can be represented by their respective states, and on the other hand, the pharmaceutical industry, which has claims on the development of medical alternatives in the context of an increasingly competitive market.
Since the TRIPS agreements were established, the WTO, initially at the margins of the debate, has weighed increasingly on the controversy. Within the TRIPS framework, the concept of property rights as private laws related to either an individual or to a company, would have excluded the indigenous communities from the WTO’s normative agenda.
For its part, the relationship between the World Health Organization (WHO) and intellectual property is underpinned by aspects involving access to drugs. Starting from the 2001 Doha Ministerial Declaration, the WHO TRIPS agreements are held as the most suitable mechanisms for the protection of public health based the regulation of drugs.
Our research thus proposes an ethnography of the law focused on the way in which the traditional-knowledge category is built. It focuses on the circulation of knowledge between the CAN and the international organizations, in particular the WIPO, the WHO, and the WTO, with a large palette of stakeholders in the middle.