Justice and the Convention on Biological Diversity
Schroeder, Doris, Pogge, Thomas, Ethics & International Affairs
"Benefit-sharing" is a technical term that was popularized by the Convention on Biological Diversity (CBD), which was adopted at the 1992 Earth Summit in Rio de Janeiro, Brazil. This global convention aims to achieve three objectives: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of benefits from the use of genetic resources. (1) The CBD, with 191 state parties as of spring 2009, was the first international treaty to recognize that the conservation of biodiversity is a "common concern of humankind." (2) Parties to the convention have pledged to cooperate to stop the destruction of biodiversity by attempting to ensure its sustainable use, and by requiring users of this natural wealth to share the benefits with those who provide access to nonhuman biological resources.
This paper situates the CBD within long-standing debates on justice, and asks: (a) What type of justice does the CBD demand with its principles? and (b) Can the CBD be regarded as just (or equitable) legislation? First, we explain that nonhuman biological resources can be viewed both as the common heritage of humankind and as property falling under the sovereignty of states, groups, or individuals. Second, we discuss whether the CBD is based on natural rights or alternative foundations. Third, we outline the difference between distributive justice and justice-in-exchange. Finally, we present our answers to the two questions posited above.
COMMON HERITAGE OF HUMANKIND VS. NATIONAL SOVEREIGNTY
Who legally owns biological resources? For individual biological specimens, such as particular trees or even whole forests, ownership follows the usual rules. Depending on the legal system and history of the relevant country, most nonhuman biological resources are owned by private individuals, companies, traditional communities with secure rights over their ancestral land, or the state. Some general characteristics of biological species, by contrast, are considered to belong to humanity at large. These characteristics prominently include plant DNA.
The idea of the common heritage of humankind explicitly entered the canon of international law in the late twentieth century with the conclusion of two UN-brokered international treaties: the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) and the Convention on the Law of the Sea (1982). These treaties declare that the seabed, the ocean floor, the subsoil thereof, as well as the surface and the subsurface of the moon shall not become the property of any state, organization, or individual. The common heritage idea has since been extended to certain biological resources, such as human DNA, which are not governed by property ascriptions, (3) and in 1995 were (along with human body parts) specifically excluded from the CBD. (4)
But what does the common heritage principle mean? There are two conflicting interpretations, exemplified respectively in the initial text (1982) and subsequent revision (1994) of the Convention on the Law of the Sea. (5) One interpretation is that our common human heritage must be used and enjoyed on terms that benefit all. The other is that our common heritage is available to be used and exploited at will on a first-come, first-served basis.
The former interpretation is suggested by some of the more lofty language of the UN agreements and also expressed by the Human Genome Project's Ethics Committee in its Statement on Benefit Sharing (2000), which asserts that "the human genome is part of the common heritage of humanity" and "[t] herefore, the Human Genome Project should benefit all humanity." (6) But the legal and practical realities are often much closer to the latter interpretation, as has been observed by (among others) the prominent Indian environmentalist Vandana Shiva:
The North has always used Third World germplasm as a freely available resource and treated it as valueless. …