Commutative Justice and Access and Benefit Sharing for Genetic Resources

Abstract

The Convention on Biological Diversity (CBD) and its Nagoya Protocol (NP) established an Access and Benefit Sharing (ABS) system between utilizers and providers of genetic resources. ABS is understood as a tool that should promote commutative justice between the involved parties. This essay discusses what exactly it is that is being exchanged in the ABS process. It critically analyses moral claims to compensation that are implied by the ABS system for genetic resources. It argues that with the exception of cases in which traditional knowledge is involved, states are not automatically entitled to compensation in return for the utilization of genetic resources growing within their territory. However, biodiversity-rich states that make an effort to protect biodiversity must be compensated for complying with the requests set out in the CBD. Although it acknowledges that the NP is a step towards recognizing this claim, this essay argues that ABS is not the appropriate method to compensate for biodiversity conservation.

Keywords:

• Access and benefit sharing
• commutative justice
• convention on biological diversity
• genetic resources
• natural resources

Acknowledgements

I would like to thank Peter Schaber and Fabian Schuppert for their repeated input and suggestions on how to improve earlier versions of the manuscript and Susette Biber-Klemm as well as two anonymous reviewers for her helpful comments. This work was supported by the UZH Research Priority Program (URPP) on ‘Global Change and Biodiversity’.

Notes

1. For more information see CBD-website: http://www.cbd.int/history/, http://www.cbd.int/information/parties.shtml#tab=1 (accessed September 2016).

2. Because genetic resources in the CBD and NP are discussed in the context of biodiversity conservation, the evident objects are various types of plants, animals and microorganisms living in the natural environment of humans. In the official Decision X/1, in which the Conference of the Parties of the CBD adopted the NP, the parties explicitly state in a comment that human genetic resources should not be subject to the NP (Greiber et al., 2012, pp. 71, 362).

3. As a standard reference of different interpretations of Aristotle’s understanding of the different aspects of particular justice see (Ritchie, 1894).

4. In the case of growing natural plants in culture, the interpretation of the original organisms as information may be a bit more far-fetched, but it can be understood as the information stored in seeds. Even in these cases, the plant-supply is usually not bound to the country of origin, because ‘the information’ can be used to grow and multiply the raw material elsewhere.

5. For some additional reflections on the rival/non-rival nature of genetic resources, see, also footnote 10.

6. The idea that the very first resource organism that was used to collect the genetic information may have been material state-property will be discussed in the next section ‘compensation for assistance’.

7. This argument does not hold for crops that were cultivated by selective breeding. As discussed in context of the previous scenario, cultivated crops have been shaped by humans; I would thus not count them as examples of natural resources.

8. See for instance (Armstrong, 2014; Schuppert, 2014).

9. The idea that the NP should compensate biodiversity-rich states for conserving biodiversity also played a role in the negotiations of the NP (Oberthür & Rosendal, 2013; Wallbott, Wolff, & Pozarowska, 2013).

10. In that sense, and in contrast to De Jonge’s observation (2011), genetic resources are even more rival or excludable than material types of natural resources, where all states with incidences of the resource in question can profit from the demand created by the first user. Joseph Millum refers to the same point when he notices that the sale of the information entailed in the genetic resources on the land of one landowner reduces the value of the same genetic resource on the land of others (Millum, 2010).

11. This understanding can be traced back to Thomas Aquinas’ interpretation of Aristotle. As mentioned before, Aristotle divides particular justice into distributive justice (διανεμετικον δικαιον, dianemetikon dikaion) and what is usually called ‘corrective justice’ (διορθοτικον δικαιον, diorthotikon dikaion) (Aristotle, 1992; Book V, Ritchie, 1894). In his interpretation of Aristotle, Thomas Aquinas opposes distributive justice (iustitia distributiva) to commutative justice (iustitia commutativa), in which he includes reparation as well as e.g. commercial exchange (Aquinas, 1993, II-II, Q61).