The Convention on Biological Diversity: An Institutionalist Perspective of the Debates
Boisvert, Valerie, Caron, Armelle, Journal of Economic Issues
Biodiversity came out as a global issue from the mid 1980s, under the pressure of converging forces: the threatening increase in species extinction and the changes in the theory as well as in the practice of nature conservation, but also the expansion of genetic engineering and the intrusion of industrial interests into areas from which they had been hitherto excluded. These elements have participated in the development of utilitarian perceptions of nature, reduced to a set of resources thanks to new technologies that have made its extensive economic exploitation possible. The Convention on Biological Diversity, adopted in 1992 during the Earth Summit in Rio de Janeiro, is in line with this approach (UNEP 1992). Indeed, the Convention rests on the notion of sustainable use of biological resources (first article), that is, an exploitation that meets the criteria of efficiency and equity and is meant to finance conservation but also to foster development in countries of the South and to benefit pharmaceutical a nd agricultural industries.
The Convention presents the definition of adequate property rights to biological resources and related knowledge as an essential prerequisite for the institution of the sustainable use--hence of the conservation--of biodiversity. This analysis comes to adhere implicitly to the conventional view of biodiversity erosion as a consequence of the appropriation failure that prevailed prior to the adoption of the Convention. Transnational corporations then had free access to indigenous resources--including knowledge--and after screening they could patent parts of these resources or their applications, depriving their former holders of their traditional use rights, as attested by the examples of neem in India or yellow bean in Mexico, both patented by American firms (RAFI 2000; Kloppenburg 1991). Bioprospecting was then exposing local communities, who--following Wesley Hohfeld's terminology--had "no rights," to the avidity of transnational firms in a position of "privilege" (Hohfeld 1913; 1917).
The definition of adequate rights aims at instituting the conditions of negotiated and mutually profitable access to biological resources. It is also presented as an incentive to undertake appropriate conservation actions. To that purpose, the Convention reaffirms the sovereignty of the states on their biological resources (preamble, art. 3), invites preservation of the knowledge, innovation, and practices of "indigenous and local communities embodying traditional lifestyles" with appropriate rights (art. 8j), and formally records the extension of intellectual property rights to life forms (art. 16,5).
The legal regime propounded is presented as the necessary prelude to the introduction of bilateral market-like contracts between the holders of biological resources (states, public organizations, or indigenous communities) and their users (firms of the life industry). These contracts would allegedly enable the optimal allocation of genetic resources and contribute to ensure the fair and equitable sharing of the benefits derived from their sustainable use.
In refusing to answer the problem of biodiversity by the implementation of an international regulation mechanism, the Convention has carried out a radical break, It pertains to the new prevailing approach of conservation, also propounded by other institutions (CITES, World Bank, OECD, etc.) (OECD 1997, 1998; Swanson, Barbier 1992; Swanson 1994). This approach is inspired by the theory of property rights that has its foundation in the Coase theorem. It draws moreover a certain defiance toward collective action and communal institutions from Garrett Hardin's famous fable of "The Tragedy of the Commons." It is eventually reinforced by the liberal theses of new resource economics (Anderson 1992; Anderson, Hill 1975; 1983; Anderson, Leal 1991) and by the pervasive ideology of globalization. Accordingly, it leads to the promotion of exclusive and transferable rights to genetic resources, species, and, if possible, ecosystems to allow the creation of markets guaranteeing their efficient allocation. …