Wronged by the wrong language: The international regime on access and benefit-sharing
| Autor | Joseph Henry Vogel - Manuel Ruiz |
| Cargo | Profesor de la Universidad de Puerto Rico - Río Piedras. PuertoRico - Abogado. Director del Programa de Asuntos Internacionales y Biodiversidad, Sociedad Peruana de Derecho Ambiental, Perú |
| Páginas | 379-381 |
− 379 −
Wronged by the wrong language:
The international regime on access
and benefit-sharing*
BY JOSEPH HENRY VOGEL AND MANUEL RUIZ
Nomenclature matters. Harvard naturali st E.O. Wilson insists th at “[t]he first step
to wisdom, as the Chinese say, is getting things by their right names.”1 Getting things by
the wrong name, albeit unwise, need not be fatal. In Through the Looking Glass, Humpty
Dumpty tells Alice that names can mean whatever he chooses for them to mean. For the
Convention on Biological Diversity (CBD) “genetic resources” means “material of actual or
potential value” where “‘genetic material” means “any material of plant, animal, microbial
or other origin that contains functional units of heredity.” “Material” is synonymous with
“tangible” and so “genetic material is [anything tangi ble] of plant, animal, microbial or
other origin that contains functional units of heredity”2 However, the object of biological
research is intangible, as eviden ced by “genetic infor mation,” a ubiquitous term in the
scientific literature. An economics of information exists and its p rescriptions are unam-
biguous: policies that enhance efficiency and equity for tangibles aggravate inefficiency
and inequity for intangibles. The CBD has gotten both the name (“genetic resources”) and
the meaning (“ material of any plant, [etc. ]”) wrong and the combinatio n is fatal for the
International Regime on Access and Benefit-Sharing (ABS). In other words, the Confer-
ence of the Parties (COP) has embarked on the wrong road and must turn back.
Ancients would often kil l the messenger of bad news; th rough willful ig norance,
moderns achieve the same effect. The politicia n who was wron g says to the wronged
constituency “No one could have foreseen the [fill in the blank for the crisis du jour].” The
truth is that almost every big piece of bad news was foreseeabl e and foreseen by [fill in
the blank for an expert]. Salient examples are the absence of weapons of mass destruction
and Hans Blix, or financial collapse through massive leveraging and Nouriel Roubini. The
failure of the CBD to achieve fair and equ itable ABS is no exception. In 1996, USAID
commissioned the first author of this piece to assemble case studies for The Summit of the
Americas on Sustainable Development. Case Number Six was entitled “The Impossibility
* Publicación en línea. Bridges Trade Bridges Rev iew, October 2010, http://ctsd.org/. Se repoduce con
expresa autorización de sus autores.
1 Wilson, E.O. Consilience (New York: Alfred A. Knopf, 1998), 4.
2 Convention on Biological Diversity, Article 2. http://www.cbd.int/convention/convention.shtml
Anuario Andino de Derechos Intelectuales.
Año VII - N.º 7. Lima, 2011
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