Thailand Law Journal 2010 Spring Issue 1 Volume 13

Human Rights Standards For
The Protection Of Intellectual Property:
Traditional Knowledge And Indigenous Resources (Part II)

By Panumas Kudngaongarm^*

III A BRIEF HISTORICAL APPROACH TO THE IMPORTANCE OF TRADITIONAL KNOWLEDGE AND INDIGENOUS RESOURCES PROTECTION

An historical approach will consider the importance of traditional knowledge, indigenous and genetic resources and the flow of genetic resources from developing countries to developed countries.

A The Importance of Traditional Knowledge, Indigenous Resources and Genetic Resources

After colonisation and WWII were over, world society stepped into a new economic order. Numerous international institutions or multilateral co-operations in form of governmental and non-governmental organizations have emerged, for instance, the United Nations and its subsidiary organisations (i.e. World Intellectual Property Organization (WIPO), United Nations Economic and Social Council (ECOSOC), Food and Agriculture Organizations (FAO), United Nations Conference on Trade and Development (UNCTAD), United Nations Environment Programme (UNEP), United Nations Educational, Scientific and Cultural Organization (UNESCO), United Nations High Commissioner on Human Rights (UNHCHR), etc), and the World Trade Organizations (WTO). The specific purposes of the institutions are based on their statutes to set up the mutual co-operation amongst nations.

Modern agricultural production techniques have replaced age-old farming techniques, particularly in western countries. Biotechnology has manipulated productivities, disease resistance and plants varieties. On the other hand, the agricultural sectors in most developing countries are still following age-old farming practices. Their agricultural productions are based on natural waters, managing disease and insect pests and low levels of technology.

In the health care sector, medicinal plants are still very essential for peoples. in less developed and developing countries. Eighty percent of the peoples still rely only on traditional medicines obtained from local plants. Eighty five percent of traditional medicine involves the use of plant extracts.¹ Moreover, there are some two hundred chemicals extracted in pure form from approximately ninety plant species used in medicine throughout the world. About half of the world's medicinal compounds are still derived or obtained from plant sources.² The medicinal plants are of great significance to both developed and developing countries. Those resources are known as genetic resources.

It is very difficult to estimate the number of genetic resources. Academics, such as
W.Lesser,state:

Scientists indeed have experienced great difficulty estimating the number of types of living organisms to within even an order of magnitude. Generally accepted estimates range from 3.6 million to 111.6 million species, with a 'work" figure of 13.6 million (Hawksworth and Kalin-Arroyo, 1995), of which about 1.4 million have been described (Wilson , 1992).³

Developing countries are rich in traditional knowledge, especially genetic resources.⁴ The value of traditional knowledge, indigenous and genetic resources are both in economic and cultural.⁵ Traditional knowledge and indigenous resources hold an increasing economic importance to indigenous peoples and local communities, for instance, traditional knowledge of the biodiversity and genetic resources in the local flora and fauna has contributed to the productivity of various industries.⁶

In addition, developing countries are recognised as having most of the world's base crop collections,⁷ particularly, in plant genetic resources that might contain undiscovered useful compounds for medicine. Those resources may well occur only in specific geographical areas, for instance, in the rainforest areas or tropical countries.⁸

The genetic resources of developing countries have contributed to the production of large-scale agricultural commodities in developed countries. Naomi Roht-Arriaza cites that:

Indigenous and local farming communities have contributed significantly to the quality and diversity of the germplasm that forms the Western countries crop production. Genes for fifteen major crops that first grew in the fields of developing countries now contribute more than $ 50,000,000 in annual sales in the United States alone. Community-based innovation systems develop and maintain this crucial genetic diversity because indigenous farmers breed varieties suited to their specific local needs and microenvironrnents.⁹

It is now widely accepted that traditional knowledge, indigenous resources genetic resources are crucial issues, particularly in the agricultural and medicinal sectors. The following topic will address how genetic resources from developing countries flow to developed countries and how their protection has become a matter of debate since the end of twentieth century.

B The Flow of Genetic Resources from Developing countries to Developed Countries There are three main significant causes for the flow of genetic resources from developing countries to developed countries. Firstly, the extinction of genetic resources in developing countries, secondly, the concept of 'plant genetic resources being the common heritage of mankind' and thirdly, the concept of 'intellectual property rights on living resources'.

1 The Extinction of Genetic Resources
In the early twentieth century, the extinctions of both plant and animal species were acknowledged.¹⁰ Academics such as Klaus Bosselmann state that:

Estimate of the number of species that exist today vary from ten to hundred million, up to twenty-five percent of which may currently be at risk. Of this number, approximately 1.4 million species have been named by science. (Paul R. Ehrlich and Edward O. Wilson, 1991) At current rates, one-quarter of all the Earth's species could be lost by the end of the next century. Fifty species of plants and animals become extinct every day.... As a result, an estimated fifty percent of the world's species are found in tropical forests, including 100,000 of the planet's 250,000 species of higher plants. Less than one-sixth of these species are known to be classified in any way, and only one percent of tropical rainforest species have been surveyed for potential useful benefits. (Eric Christensen, 1987)¹¹

* Assistant Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.) This paper prepared for presentation at the 'Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future' Singapore, 7-9 April 2007. Part two is included A Brief Historical Approach to the Importance of Traditional Knowledge and Indigenous Resources protection, Human Rights Standards for the Protection of Intellectual Property and the Conclusion.

1. K.V. Krishnamurthy, Textbook of Biodiversity (2003) 78. see also N.R. Fransworth, 'Screening Plants for New Medicines.' in E.O. Wilson and F.M. Peter (eds). Biodiversity (1988) 212-216. and Graham Dutfield above n 9 of Part I, 97. 'According to the World Health Organization, up to 80 per cent of the world's population depends on traditional medicine for its primary health needs.'

2. Ibid. See also O. Hamann, 'The Joint IUCN-WWF Plants Conservation Programme and its Interest in Medicinal Plants' in O. Akerele, V. Heywood and H. Synge (eds), The Conservation of Medicinal Plants (1991) 13-22.

3. W. Lesser, Sustainable Use of Genetic Resources Under the Convention on Biological Diversity: Exploring Access and Benefit Sharing Issue' (1998) 1.

4. Daniel Gervais, above n 58, 1. See also Peter Drahos, above n 62 of Part I, 9.

5. Sumathi Subbiah. 'Reaping What They Sow: The Basmati Rice Controversy and Strategies for Protecting Traditional Knowledge' (2004) 27 Boston College International and Comparative Law Review 529, 533.

6. Ibid. For example Agriculture and biological insecticides, herbal medicines and Pharmaceuticals, cosmetics.

7. Graham Outfield above n 9 of Part I, 4.

8. Michael Hassemer, above n 56 of Part I, 156.

9. Naomi Roht-Arriaza, 'Article: of Seeds and Shamans: The Appropriation of the Scientific and Technical Knowledge of Indigenous and Local Convnunities' (1996) 17 Michigan Journal of International Law 919, 931.

10. Klaus Bosselmann, above n 2 of Part I, 112.

11. Ibid. 113-4. For more details please read 'Loss of Bicdiversity', K.V. Krishnamurthy, above A 1, 81-105.