Jan-feb 10 report.qxp

The search for valuable new products from among the world’s stock of natural biological resources is mostly carried out by people from wealthy countries, and mostly takes place in developing countries that lack the research capacity to profit from it. Surely, the indigenous people should receive some compensation from it. But we must build a robust defense for this intuition, rooted in the Western moral traditions that are widely accepted in wealthy countries, if we are to put it into practice and enforce it. Bioprospecting—the search for valuable chemi- Consider the famous Hoodia case.2For millennia, cal products in natural biological resources— the San people of southern Africa have used native is an important source of novel chemical and plants of the Hoodia genus as appetite suppressants.
biological products with potential uses in medicine, Their practice was documented by colonial agriculture, and other industries.1 But a great deal of botanists, and Hoodia’s properties were then investi- the world’s “biodiversity” is found in developing gated in the late twentieth century by the South countries, which often lack the research capacity to African Council for Scientific and Industrial Re- make use of it. Bioprospecting in such environments search, which attempted to isolate the active ingredi- generally requires outside bioprospectors and spon- ents. In 1995, following nine years of development, sors from the developed world. This has led to con- CSIR applied for a patent on the chemical compo- cern that bioprospectors will take what is valuable nents of the plant that suppressed appetite. Three without compensating the community from which years later, they signed a licensing agreement with a the samples come or whose knowledge led to the dis- private company named Phytopharm that developed covery. Critics label such practices “biopiracy.” a program with Pfizer for commercialization ofHoodia products for the lucrative Western weight Joseph Millum, “How Should the Benefits of Bioprospecting Be loss market. All this research and development pro- Shared?” Hastings Center Report 40, no. 1 (2010): 24-33.
ceeded without the knowledge of the San. Only in 24 H A S T I N G S C E N T E R R E P O RT tional knowledge also seems strange.
Compensation is required even when benefit from Hoodia’s commercializa- benefit from Hoodia’s development.
biodiversity are justified is clearly cru- need to encourage people to reveal it.
signatories, requires the “fair and eq- uitable sharing of the benefits arisingout of the utilization of genetic re- IF MEMBERS OF A community have morally justified sources.”3 However, the ethical justifi-cations for such sharing have not been property rights over areas of biological diversity, then their established, beyond appeals to intu-itions about justice and exploitation.
rights over access to genetic resources within these areas should Consequently, what share of benefitsis owed—and to whom—is also un- be considered collective rights. Consequently, the community as a whole is the appropriate party for bioprospecting prospecting consistent with the Con-vention on Biological Diversity is negotiations, and its shares of benefits should be apportioned found in the benefit-sharing arrange-ments of the U.S.-sponsored Interna- tional Cooperative BiodiversityGroups, or ICBGs.4 These arrange-ments specify, first, that benefit-shar- ments apply to traditional knowledge.
Until then, for the sake of simplicity, I to genetic resources and for the use of physical access to genetic resources.
fit-sharing. If the only available justi- coveries.7 I also treat these benefits as limits). In this case, for example, indi- should be considered collective rights.
ers, even if her other rights over that the group as a whole. Common prop- erty is open to use by all, so long as no fied, I will speak of legitimate proper- In working out how to share the to be governed by individual property Suppose that the forest is individu- and so the same genetic information.
therefore equally valuable. Call this ex ante value v. But then suppose some fair, will give v to P. Those parts of the be valuable (that have ex post value) What rights might be held? Within
lieved to be collective. But is this belief Why property rights in biodiversity
should be held collectively. It will help
than v. Similar reasoning applies if mon. Individual property is held ex- clusively by one person. Collective terests of all those subject to them.
an analysis of Natura’s access and ben- value of other individuals’ timber: its ular government actions or policies.
licity) of that information by one per-son reduces the value of the same in-formation held by others. By selling IN PRACTICE, IT may be difficult to find legitimate access to her biodiversity, P imposes acost on the other members of her decision-makers for indigenous communities living in areas of community. But, all else being equal,if I impose a cost on someone with- biodiversity. The national government might not represent out her consent, then I owe her com-pensation. Indeed, I owe at least the fully these communities’ interests, making negotiation with value of the cost I imposed. This im-plies that the benefits of selling access other local parties necessary. Although individuals should not should be distributed among all thepeople who have legitimate property be able to make independent decisions about bioprospecting, appropriate community representatives can do so.
imposed on nonconsenting others ex-plains why the benefits of selling ac- Apparent counterexamples. I have
by reduced the value of your property.
prima facie and all-things-considered is, what counts as a fair share of ben- change one’s possessions is an intrinsi- sources, which is a capital investment.
ing to specify a principle of fairness.21 lead to unfair divisions of benefits.
er, the fact that coercion is involved is of surplus value ought to favor the co- reflect the value of the resource only if (Trichopus zeylanicus travancoricus), a sure that the transaction is fair, and so will produce a fair outcome only if wecompensate for distorting factors IF I SELL GENETIC information, the reason that such as the lack of relevant informa-tion or expertise, and the exercise of information drops in value is not a decrease in demand relative morally irrelevant power differences.
Those negotiating bioprospecting to supply, but the fact that after one individual has sold the arrangements should either minimizethese factors or aim for the result that information, there is no more information to be sold. Thus, they judge would be reached withoutthem.
allowing the first seller to take all of the payment does not seem to benefit society in the same way.
fair share of benefits. In practice, theyare likely to be taken into accountonly if a system of governance is in from it, such as the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising Out of Their Utilization, as sponsors to conform to best practice.
erty in the areas of biodiversity.26 This pected ex ante value of the resources.30 determined fraction of the ex post fair or unfair only in terms of the ex nous people should have control over ante benefits—there is no sense to ply by paying them not to damage it.
that there is an issue of justice here— deserve compensation, and that pay- cide who gets it. This is a fair arrange- toss, one of us will have a full bottle of The argument so far has been in Instrumental accounts justify the present global disparities: justice the rights assigned in a particular way.
the Western tradition. As traditional ical realities make a wholesale redistri- whose present situation is not unjust.
pected to improve the distribution ofresources. One, I now argue, would THE INTUITION THAT there is an issue of justice here—that the holders of genetic resources deserve developed and developing countries,are relatively and absolutely very compensation—can be explained, and their property rights poor. This makes them excellent can-didates for a justice-based redistribu- justified, if these rights are viewed as instrumental in achieving tion of resources in their favor. Giventhe global inequalities in wealth, we distributive justice. Giving indigenous peoples at least should expect the additional re-sources they deserve to be quite sub- property rights over the land they occupy would bring them stantial. In particular, the value of theresources they deserve is likely to ex- closer to the situation they ought to be in. Benefit-sharing ceed the ex ante value of the land theyoccupy. This means that there is good arrangements are one acknowledgment of these rights.
reason for such people to at least begiven property rights over that land,with all that this implies regarding the nomic Goals,” Pharmaceutical Biology 37, ICBG (University of Illinois at Chicago In- Model of Benefit-Sharing Arrangement inNatural Products Drug Discovery and De- velopment,” Journal of Natural Products 67 share benefits with all who possess it.
bate. Many important medicines are derived from natural products; G. Tan et al., “Biodi- versity as a Source of Anticancer Drugs,”Current Drug Targets 7, no. 3 (2006): 265- 77. Nonetheless, it is very rare for a natural “Combining High Risk Science with Ambi- tious Social and Economic Goals,” 7.
8. See C.R. Bijoy, “Access and Benefit- Hastings Center Report for helpful com- Sharing from the Indigenous Peoples’ Per- ments on earlier drafts of this paper.
spective: The TBGRI-Kani ‘Model,’” Law, Environment and Development Journal 3, no.
9. See W. Sumner, The Moral Foundation of Rights (Oxford, U.K.: Clarendon Press, thor’s own. They do not reflect any po- work into learning their craft, or if in- 10. See J. Waldron, “Property,” The Stan- ford Encyclopedia of Philosophy, fall 2004 edi- tion, ed. E.N. Zalta; http://plato.stanford .edu/archives/fall2004/entries/property/.
legitimate property rights over the land they inhabit, although frequently, either these 1. See W.R. Reid et al., Biodiversity rights are not acknowledged in law, or the Prospecting: Using Genetic Resources for Sus- laws that should establish them are not hon- tainable Development (Washington, D.C.: World Resources Institute, 1993); A.J. Beat- 12. This is a simplification. In fact, there tie et al., “New Products and Industriesfrom Biodiversity Millennium Ecosystem can be significant genetic variation within a Assessment,” in Ecosystems and Human Well- Ihave sought to defend benefit-shar- Being: Current State and Trends (Washing- run different tests, and sometimes the same ton, D.C.: Island Press, 2005), 271-95.
biological sample can be rescreened for newcompounds and properties of interest as new tests are developed. The essential point berg, “Rhetoric, Realism and Benefit-Shar- is that additional samples of a species con- ical to indigenous people’s claims.
ing: Use of Traditional Knowledge of Hood- tain rapidly diminishing amounts of extra ia Species in the Development of an Ap- genetic information about that species.
petite Suppressant,” Journal of World Intel- lectual Property 7, no. 6 (2004): 851-76.
legitimate authority over their citizens. Sim- ilarly, local governments can legitimately Article 1, June 5, 1992; http://www.cbd.int represent their subjects, including by wield- considerations may make a difference.
4. Seven such groups—each a public-pri- 14. S. Laird, “Natura, Brazil: The Use of vate partnership that includes a developing country organization—are currently operat- Based Sourcing of ‘Biological Materials’ in ing in different regions of the developing the Personal Care and Cosmetics Sector,” in world. They promote the three goals of im- Access and Benefit-Sharing in Practice: Trends proving human health, promoting scientific in Partnerships Across Sectors (Montreal, and economic activity in developing coun- tries, and conserving biological diversity. J.
32 H A S T I N G S C E N T E R R E P O RT ed?” Plant Physiology 134 (2004): 1295- applies only when the person affecting an- other’s interests has no right to do so. But property rights over an area of biodiversity.
this would put the cart before the horse: we Further redistribution of benefits might be 34. J. Locke, Two Treatises of Government, are trying to work out who has the right to required by, for example, distributive jus- book II (London, U.K.: Printed for C. and 16. A. Sen, Development as Freedom, (New York: Anchor Books, 1999), 112-19.
Kanis: A Case Study from Kerala, India,” rights are justified because the property has 17. Farmers’ subsidies provide an exam- Convention on Biological Diversity, Biolog- ple of how increasing supply can give legiti- from ancestors who legitimately acquired it //www.biodiv.org/doc/case-studies/abs/cs- Union massively subsidizes its farmers so er, the legitimacy of such transfers is unclear.
that they can produce food at artificially low It may seem unjust for the actions of long- costs. When a subsidized foodstuff is put on are not the only group to claim traditional the market, it increases supply and reduces use of Hoodia. San communities exist in the price of the foodstuff. For farmers out- event, the ancestors will often not have per- side of the Union, in the developing world, tribes use the plant; Wynberg, “Rhetoric, formed the actions necessary for acquiring Realism and Benefit-Sharing,” 852-53.
property rights according to these two theo- this case, freedom is not enhanced: at best vention on Biological Diversity gives na- they can exercise, and the farmers who now tions sovereign rights over their biological lack a market have fewer. Furthermore, the resources (see Preamble and Article 15.1).
market is not functioning well: the subsidies We must hope that where the biological re- decrease the efficiency of the agricultural below 1 Billion, Says World Bank,” http: sources of different countries overlap, this sector overall. See Oxfam Briefing Paper, will engender cooperation, not competition.
Subsidies Are Damaging Livelihoods in the of a series of products—the probabilities of People,” http://www.forbes.com/2004/02/ efits given to communities living in areas of parties to the transaction are being treated 39. W. Kymlicka, Contemporary Political fairly and then consider what else is needed Philosophy: An Introduction, second ed. (Ox- sources’ ex ante value or on their ex post to treat the holders of the genetic resources ford, U.K.: Oxford University Press, 2002), value. For example, should a community re- ceive fixed milestone payments as a research different grounds for establishing desert is chance to receive a potentially lucrative Justice and Health: A Proposal,” Ethics and difficult. Consider how we should divide a share of the royalties on an eventual prod- International Affairs 16, no. 2 (2002): 81- uct? In the abstract, it seems to me, the par- and the owner of the machine. The machine ties to benefit-sharing agreements should be 41. See T. Pogge, World Poverty and free to negotiate for ex ante benefits, ex post Human Rights: Cosmopolitan Responsibilities serves should be determined by the market benefits, or a mix of the two. In practice, and Reforms (Cambridge, U.K.: Polity Press, price value of the labor, while the worker 2002), 203-4. A libertarian might think of claims that she deserves the majority of the least some ex ante benefits. Any given bio- the distributive requirements I mention as prospecting venture is unlikely to produce rectification for past unjust transactions; see profitable products, and any products will R. Nozick, Anarchy, State, and Utopia (New 20. See A. Wertheimer, Exploitation take a long time to get to the market. But York: Basic Books, 1974), 152-53 and 230- (Princeton, N.J.: Princeton University Press, many communities have immediate needs.
Consequently, immediate and certain bene- fits are in their interests. See J. Rosenthal, some other, equally valuable property, but “Equitable Sharing of Biodiversity Benefits: Agreements on Genetic Resources,” in In- property is less likely to be useful to people.
23. Bill of Law No. 306/95 (Draft), tr. V.
vesting In Biological Diversity: Proceedings of Tavares; http://www.lclark.edu/law/clinics the Cairns Conference, Organisation for Eco- Novel Partnership,” The New Scientist (Oc- ject/brazil_genetic.php, accessed September 44. See. B. Berlin and E.A. Berlin, “Pri- 24. For details, see B. Berlin and E.A.
on Bioprospecting: Implications for Local Diversity grants control over genetic re- sources to national governments. However, sent,” in Ethical Issues in International Bio- I am concerned with the moral justification Have Succeeded Failed,” Human Organiza- medical Research: A Casebook, ed. J. Lavery of property rights, which is what determines tion 63, no. 4 (2004): 472-86.
the moral justification for benefit-sharing.
See P. Gepts, “Who Owns Biodiversity, and for the Hastings Center Report for pressing

Source: http://huberb.people.cofc.edu/www/Readings/101%20Readings/BioProspecting%20Kung%20Hoodia.pdf