Reclaiming the Commons: Biodiversity, Traditional Knowledge, and the Rights of Mother Earth

INTRODUCTION

My Thirty-Year Journey on Biodiversity, Biopiracy and Intellectual Property

IN 1987 I WAS INVITED TO A MEETING in Bogeve, France and the United Nations in Geneva on Laws of life and emerging Biotechnologies.¹ Agrichemical corporations were present at this meeting. There, it was stated, that at the turn of the century (2000) there would be only five corporations controlling food and health, and those who would ‘win the race’ would have the largest number of mergers, acquisitions, and patents on seeds. Additionally, it was said that new biotechnologies based on recombinant DNA–which allowed moving genes across species boundaries to make GMOs–were going to be the basis of these patents on seeds.

Today, with the merger of Bayer with Monsanto, Dow with Dupont, and Syngenta with ChemChina, there are precisely three megacorporations controlling global food and health through seeds, agrichemicals, pharmaceuticals, as well as large scale biopiracy from nature and indigenous communities.

It was this very meeting in Bogeve that started me on the journey to protect biodiversity and seeds with local communities, working both with our government and parliament to evolve laws to protect biodiversity, people’s traditional knowledge, as well as protecting national sovereignty in our laws.

As a scientist I have worked for more than thirty-five years on conservation and the sustainable utilization of seeds and biodiversity, on defending Farmers’ Rights, and on IPRs related to seeds.

This book marks the long legal journey to protect our biodiversity and indigenous knowledge from the unscientific, unethical frameworks that corporations try to impose on us in order to own life on Earth and collect rents from farmers as seed royalties. I felt then, and feel even now, that the claim that Monsanto ‘invented’ the seed and has a ‘right’ to collect royalties from our farmers, and farmers all over the world, is both epistemologically and ethically wrong. Seeds are not ‘machines’ ‘invented’ by corporations. Indian laws and international laws were fortunately shaped, not by Monsanto’s bullying and false claims, but by the scientific fact that the biodiversity and living organisms are self-organized, highly complex, and constantly make and renew themselves. Indigenous communities, including traditional farmers, co-create and co-evolve biodiversity with nature. This book is about the common creativity of the earth, her biodiversity, and people’s knowledge. It is also about the scientific, legal, political and cultural struggle to defend the sovereignty of biodiversity, indigenous cultures, and national systems.

Since the beginning of this journey, I have worked with our government on the negotiations on the Convention on Biodiversity (which was signed in Rio at the Earth Summit in 1992). I have worked on TRIPS/GATT/ WTO, as well as serving as an expert involved in drafting India’s Plant Variety Protection, Farmers’ Rights Acts, and the National Biodiversity Act. I have also worked closely with the National Working group on Patent Law and the all-party group in Parliament on the Amendment of the Patent Act to implement TRIPS which resulted in Article 3(j) that excludes plants, animals, and seeds from patentability.

In addition to the work I’ve done to help protect our national sovereignty and public interests; I have also served as an expert in monitoring the epidemic of biopiracy of indigenous biodiversity and knowledge, challenging and winning cases against the biopiracy of neem and wheat in the European Patent Office. Our research on biopiracy monitoring and the resulting victories are also summarized in this book.

Further, I have intervened in the High Court Karnataka case on Monsanto’s challenge to the Seed Price Control Order of the Government, as well as the Delhi High Court case related to 3(j), whose decision Monsanto has repeatedly challenged in the Supreme Court.

Monsanto has further attempted to challenge the Competition Commission of India’s (CCI) investigation into its prima facie monopoly on Bt cotton, with the false claim that it has a patent on Bt cotton. It is in cases such as this, and other such false claims in the context of the Bayer-Monsanto merger, for which I have been a representative to the CCI.²

Monsanto’s refutation of article 3(j) of India’s Patent Act through the commercial case no. 132/2016 was dismissed by the High Courts. Monsanto subsequently appealed to the Supreme Court to overturn the High Court ruling but failed on May 7, 2018.

Reclaiming the Commons first written in 1997 as part of the public debate taking place across the country in the context of the implementation of the Convention on Biodiversity (CBD) and the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the WTO. Its objective was to protect our sovereign rights and community rights to biodiversity in the Biodiversity Act and our Amended Patent Act.

The CBD is an international, legally binding agreement, which recognizes the sovereign rights of countries to their biological resources. It also acknowledges ecological innovation within indigenous communities. The CBD gave us an opportunity to change the regime of biopiracy at the global level and replace it with a sustainable and just system in which biodiversity, diverse knowledge systems, and the rights of communities—whose survival depends on this biodiversity and knowledge—are simultaneously protected.

Two decades ago, in the heyday of globalization, there was an attempt by global corporations and some countries representing corporate interest, to privatize and enclose our biological and intellectual commons. The expansion of ‘Intellectual Property Rights’ into the domain of life forms and biodiversity, and the globalization of this regime through the TRIPS Agreements of GATT/WTO, were direct attempts at the enclosure the biological and intellectual commons. We were successful in our laws to prevent these enclosures and protect our rights in our national laws, adopting the sovereign path and avoiding recolonization of our biodiversity and living wealth.

The ‘enclosure of biodiversity and biodiversity related knowledge through patents and intellectual property rights’ is the final step in the series of enclosures of the commons that began with the rise of colonialism. Therefore, biodiversity and biodiversity related knowledge needs to be adequately protected in light of the continued attempt at making ‘private property’ out of long-held traditional knowledge and life forms.

Juridical innovation was required to recognize and protect biodiversity and the cultural integrity of indigenous communities from piracy and privatization, allowing them to continue to use their resources freely, as they have done since time immemorial.

The global context is driven by two forces–the commitment of the international community to protect the conditions of life on earth through the Convention on Biodiversity on the one hand, and the pressure from global corporations for limitless markets, profits, and privatization of the earth’s resources on the other.

Thus, the new context since the 1990s required that:

•Under CBD, India implemented laws to conserve biodiversity and ensure its sustainable and equitable utilization

•Under the Leipzig Global Plan of Action, India evolved and implemented laws to conserve plant genetic resources for agriculture

•India implements the TRIPS Agreement, taking into account the full range of options available

The legal changes are being made in the context of the existing reality of:

•A rich biodiversity wealth in spite of massive erosion

•A rich and ancient heritage of indigenous knowledge for the utilization of biodiversity

•An epidemic of biopiracy which includes the piracy of our biological resources and indigenous knowledge

The three most significant legal changes that have been made in Indian law to protect our biodiversity and indigenous knowledge are:

•Implementation of the Biodiversity Act 2002

•Introduction of the Plant Variety and Farmers’ Rights Act 2002

•Amendments to the Indian Patents Act 1970 which was made in 2005

Within this context of existing realities and emergent challenges, over the last two decades India chose the sovereign route to implement national laws. Sovereignty over biological resources and indigenous knowledge has been recognized by the CBD, specifically in Articles 3 and 15. This recognition has changed the open access regime that was prevalent under colonial systems in which Third World genetic resources were treated as the ‘common heritage of mankind’ available to use freely, while plant varieties and products developed from this rich biodiversity were treated as intellectual property of northern corporations.

The Colonial Option

Treats indigenous knowledge and Third World biodiversity as open access systems and ‘common heritage of mankind’. But the products developed from this knowledge and biodiversity require intellectual property protection.

Adopts western style IPR systems blindly and makes the protection of private property in life forms the only objective of the legal systems, thus promoting the monopoly of TNCs over knowledge and biodiversity.

The Sovereign Option

Recognizes the sovereign rights over the biological and intellectual heritage. Therefore, evolves a jurisprudence and legal framework appropriate to the protection of our biological and cultural diversity and the protection of biological and intellectual commons; and creates the balance of public and private interest as the main objective of our legal system.

The recovery of the commons is different from the open access system of ‘common heritage of mankind’. Commons are based on community control and community management and are not open access systems. In fact, community control over common resources is the only real mechanism for ensuring sovereign control over natural resources.

Again, India chose the sovereign issue to frame her laws to implement CBD and the TRIPS Agreement. However, the forces that wanted to use both CBD and TRIPS to colonize our biological and intellectual heritage by having unregulated access to our rich biodiversity, taking patents on biodiversity, living resources and seeds, are still trying to undermine the legal framework we have evolved. Both the colonial option as well as the sovereign option recognize the value of biodiversity and the value of indigenous knowledge systems. However, they differ in the fact that in the colonial option, India’s biological and intellectual heritage will not serve the economic interests of India’s people as it is based on corporate values. In the sovereign option, the biodiversity and knowledge that has evolved in India will continue to meet the economic needs of India’s people, and continue to evolve on the basis of the value on which it has been sustained over centuries.

The sovereign option and colonial option emerge from two different paradigms and worldviews, leading to two conflicting ownership systems: an age-old system based on community rights, still the dominant one in rural and indigenous communities, combined with national sovereignty, and the ownership system of corporate defined IPRs based on individual private property and enclosures of the commons. The sovereign option in the context of traditional knowledge and biodiversity requires the reinvention of sovereignty to be centered on people since local communities are the conservers of both the resources and knowledge.

The reinvention of sovereignty has to be based on the reinvention of the state so that the state becomes a partner of the people and is thus not reduced to a corporate state. Sovereignty cannot only reside in the centralized state structures, nor does it disappear when the protective functions of the state, with respect to its people, start to wither away. The partnership for national sovereignty needs empowered communities which assign and set the duties and obligations on which the state structures itself. On the other hand, TNCs and international agencies promote not only the separation of community interests from state interest, but also the fragmentation and divisiveness of communities.

The sovereign option adopted by India for its legal systems for biodiversity, conservation, and protection of traditional knowledge, recognize the sovereign rights of the country as well as the rights of communities, and not merely the rights of corporations. In the IPRs context, we have evolved articles that recognize real inventions and do not reward biopiracy and patents of living resources which are not inventions.

As we look back over the last thirty years, we feel grateful that we have been of service to the earth, our country, our farmers, and our tribals. We feel satisfied that the laws we were struggling to put in place when we first wrote The Enclosure and Recovery of the Commons are now the law of the land. I was personally part of the expert groups that drafted our Biodiversity Act, our Plant Variety Protection and Farmers’ Rights Act, and our Tribals, and Forests Dwellers Rights Act.

Today, there is a renewed attempt by the privateers to own life on earth by eroding the sovereign laws of India. The arguments they use are the same tired arguments of two decades ago–of presenting biopiracy as ‘invention’, with the assumption of colonial superiority. We are therefore bringing out a new edition, highlighting the uniqueness of India’s biodiversity related laws to protect our unique natural heritage, our civilization, revisiting the timeless debates about the commons and their enclosures, sovereignty vs colonialism, and sustainability vs non-sustainability.

As the ‘miracle’ of globalization and of new GMO technologies fades, the limits of the greed driven global market and the mechanistic paradigm of the dominant stream of Western corporate science are recognized, the potential of biodiversity, biodiversity-based knowledge systems, and of biodiversity-based economies to the common good become signposts for the future.

Reclaiming the Commons is about the thirty-year journey on the recovery of the biological and intellectual commons. Commons for communities are not the same as the open access unregulated systems industry has been trying to create. The commons as managed by communities and defended through laws of national sovereignty are vital to protect the common good, to protect the web of life, hence protecting life itself. They are vital in protecting our humanity, and to help us remember we are part of one earth family. Especially for the two-thirds of India who live outside the livelihood provided by the state, and the market, in what is referred to as the biodiversity-based economy. The biodiversity-based economy of India represents the poorest communities in marginalized regions, their access to biodiversity and use of their indigenous knowledge and skills is their primary means of livelihood security.

Additionally, this book touches on the evolution of Navdanya’s efforts in protecting our biological and intellectual commons over the last three decades, our contribution to the legal framework for the protection of biodiversity; as well as the foundation of our civilization, our culture, our economies, and our knowledge systems.

The main contributions we have made are:

•Conservation of biodiversity and creation of community seed banks to defend seed as a commons

•Strengthening of Farmers’ Rights in the area of agricultural biodiversity

•Strengthening Rights of traditional medical practitioners in the area of medical plants

•Strengthening Rights of craft communities using biodiversity

•Providing alternatives to the western industrial corporate model of IPRs as experts in drafting the Biodiversity Act, the Plant Variety Protection Act, and working with Parliamentarians on amendments to the Patent Act, specially the introduction of Art 3(j)

•Monitoring cases of biopiracy, legally challenging and winning the cases of biopiracy of our neem, basmati, and wheat

The IPR system as it has evolved in western industrial societies is, in effect, a denial of the collective innovation our people that has been developed over thousands of years. The expansion of such narrowly defined IPRs to biodiversity and knowledge of its utilization results in enclosures of the biological and intellectual commons which have supported local communities and indigenous cultures over millennia. Biopiracy becomes the inevitable outcome of such a regime.

The piracy of the indigenous innovation through patents on nature and the diversion of their biological resources to global markets without regulation through laws like our Biodiversity Act have prevented the undermining of the livelihood of two-thirds of India: women, tribals, peasants, pastoralists, and fisher folk. It also threatens the biodiversity base which they have protected because their survival depends on it.

The defense of the rights of traditional communities to their biodiversity and traditional knowledge is based on recognition by the state that communities have their own rights, knowledge, and values, needing protection by the state. This recognition by the formal legal systems does not give the state the right to intrude in local biodiversity utilization patterns based on community rights, but it creates an obligation on the state to prevent external actors from pirating local resources and indigenous knowledge, and from imposing property rights regimes that counter community rights, and cultural values. This is precisely what our national Biodiversity Act has ensured.

This rectification is necessary because in the absence of strong community rights protection, the state is merely an instrument of the protection of foreign investment and a promoter of the predation of biodiversity and indigenous knowledge.

The implementation of the Panchayati Raj Act in scheduled areas (the provision of the Panchayats {extension to the scheduled areas} Act 1996), has already set precedent for the recognition of communities as their own competent authority for decision making on resource use, cultural values, traditions, and community rights to common resources as the building blocks of a decentralized democracy.

Global corporations are still trying to establish an unfair regime in which biological and intellectual resources flow freely from poor countries to rich countries, without regulation, and from the poorest communities to the richest corporations. Biological resources come back in patented form resulting in a double loss for poor countries and their communities; the first through the theft of their intellectual and biological wealth, and second through royalty payments for what has been derived from their collective, cumulative innovation and biodiversity.

Two decades ago, they tried to prevent regulation for the fair, equitable, sustainable, and just use of biodiversity. Today the laws for equity and sustainability are in place both nationally and internationally. The attempt now is to dilute and subvert them. Our work today, as thirty years ago when we started Navdanya, is to protect our biodiversity, our sovereignty, our commons.

We are at a new watershed. In the 1990s we were defining a new partnership between the sovereignty of the country and the sovereignty of local communities. Today–with strong laws that exclude the false claim to invention of life forms, laws for Biodiversity Conservation, and regulation for access and benefit sharing–we can take the next quantum leap in the form of a new partnership between the creativity of nature and her diverse species, the innovation of traditional communities, and our sovereignty as a nation.

During the next thirty years of India’s formal independence, it is appropriate to expand our policies to reflect our civilizational philosophy of Vasudhaiva Kutumbkam, that the Earth is one family, one community in diversity. Living as one family in a diverse, complex, fragile world requires the evolution of living democracies and living economies. Navdanya has catalyzed the living democracy, and living economy movement by creating community seed banks, community biodiversity registers, and local living biodiversity economies. India’s true democratic spirit rests on deepening movements for decentralized democracy throughout the country by recognizing the knowledge, innovation, and biodiversity that have evolved through community rights and community responsibility. What is more, the recognition of community rights is a precondition for both the protection of biodiversity and the protection of people’s rights. This recognition is also the only means for protecting our natural wealth in the form of our biological and intellectual heritage and our national sovereignty.

Species are disappearing at more than 10,000 times the normal rate. Scientists are now talking of the sixth mass extinction, including the imminent threat to the survival of our own species. Conserving biodiversity and cultures that conserve biodiversity is not an issue we can ignore or devalue. It has become imperative to our very survival.

We dedicate this book to the human potential and human will to cultivate the possibility of a better future.

– Dr. Vandana Shiva

WHERE THE MIND IS WITHOUT FEAR . . .

Where the mind is without fear and the head is held high;

Where knowledge is free;

Where the world has not been broken up into fragments by narrow domestic walls;

Where words come out from the depths of truth;

Where tireless striving stretches its arms towards perfection;

Where the clear stream of reason has not lost, it’s way into the dreary desert sand of dead habit;

Where the mind is led forward by thee into ever-widening thought and action–

Into that heaven of freedom, my Father, let my country awake.

– Rabindranath Tagore

The Universe is the creation of the supreme power

meant for the benefit of all creation. Each individual

life form must, therefore, learn to enjoy its benefits

by forming a part of the system in close relation

with other species. Let not any one species encroach

upon others’ rights.

– Ishopanishad

ONE

The Duty to Protect Biodiversity

THE CONVENTION ON BIODIVERSITY AND THE BIODIVERSITY ACT

Protecting Our Rich Biological and Intellectual Heritage

INDIA IS A CIVILIZATION whose knowledge, economies, and democracy are based on diversity. India possesses a unique wealth of biological diversity— from the ecosystem level to the species and genetic levels—which have been preserved, protected, and evolved by our indigenous peoples and traditional cultures over thousands of years. It is estimated that over 75,000 species of fauna and 45,000 of flora are found in India. Of the estimated 45,000 plant species, about 15,000 species of algae, 1,600 lichens, 20,000 fungi, 2,700 bryophytes, and 600 pteridophytes. The 75,000 species of animals include 50,000 insects, 4,000 mollusks, 200 fish, 140 amphibians, 420 reptiles, 1,200 birds, 340 mammals, and other invertebrates. Thus, India is a home to about two lakh species of living organisms.

In addition, our farmers have bred diversity in grains, pulses, oilseeds, vegetables, and fruits; gifting the world 200,000 varieties of rice, 1,500 varieties of wheat, 1,500 varieties of mangoes, and 4,500 varieties of brinjal (eggplant).

It is the biodiversity of our spices, our cotton, and our indigo that was the source of India’s wealth in pre-colonial times and was the reason for colonization. Today there is a new attempt to colonize our biodiversity–our seeds and medicinal plants through biopiracy and patenting.

Ancient, intricate systems of traditional indigenous knowledge for biodiversity utilization have been evolving steadily, reflecting the continuous, cumulative and collective innovation of the people. Traditionally, the knowledge has been freely available within and between communities in the commons.

Most of the people in our country derive their livelihood and meet their survival needs from the diversity of living resources; as forest dwellers, farmers, fisher folk, healers, and livestock owners. Indigenous knowledge systems existing in medicine, agriculture, and amongst fishers are the primary base for meeting the food and health needs of the majority of our people.

The immense resources of natural heritage have been protected, preserved and conserved over the years by India’s indigenous peoples, who have had a reverence for their natural heritage. Conservation and utilization have always been delicately, sensitively, and equitably combined in the indigenous knowledge system and cultures of India.

There are two paradigms of biodiversity conservation. The first is held by communities whose survival and sustenance is linked to local biodiversity utilization and conservation. The second is held by global commercial interests whose profits are linked to the utilization of global biodiversity for the production of inputs into large scale homogeneous, uniformly centralized and global production systems. For local indigenous communities, conserving biodiversity means to conserve the integrity of ecosystems and their species, the right to these resources and knowledge, and their production systems based on biodiversity. For them, biodiversity has intrinsic value as well as high use value. Where commercial interests are concerned, biodiversity itself has no value; it is merely ‘raw material’ for the production of commodities, for the ‘mining of genes’ and for the maximization of profits.

Most people in India, even today, live in the first paradigm of biodiversity utilization. According to an ethnobotanical survey, there are 7,500 species used as medicinal plants by the indigenous medical traditions of India. These traditions are kept alive by 360,740 Ayurveda practitioners, 29,701 Unani experts, and 11,644 specialists of Siddha. In addition, millions of housewives, birth attendants and herbal healers carry on village-based traditions. In the 1990s, before the impact of globalization, 70 percent of health care needs in India were still based on traditional systems which are centered around the use of medicinal plants. Eighty percent of seeds used by farmers still came from farmers’ seed supplies. Thus, India was still predominantly a biodiversity-based economy. Impacts of globalization have eroded the biodiversity and knowledge sovereignty of local communities, pushing them into deep poverty and unemployment.

The utilization of biodiversity in a people’s economy is guided by a plurality of knowledge systems. The knowledge of the properties, characteristics, and uses of this biodiversity is held by local epistemological frameworks.

Nature’s diversity and the diversity of knowledge systems is, however, undergoing a major process of destabilization with the expansion of patents and intellectual property rights as defined by corporations into the domain of biodiversity. While nationally we have taken steps to protect our biodiversity, biopiracy alongside the patenting of indigenous knowledge is growing rampantly.

As we enter the third millennium, we need to find ways to protect biological diversity, the intellectual heritage of India, and the world for future generations. On the one hand, emergent ecological concern for the conservation of biological diversity and the growing awareness of the western paradigm of reductionist mechanistic knowledge provides a new opportunity to value the indigenous knowledge of local communities. On the other hand, emergent forms of private property in knowledge and life forms threaten the continuity of biodiversity and related knowledge for the poorer two-thirds of India. This awareness also creates an opportunity to recover and reclaim the commons. The renewed incentive to conserve comes from commitments India has made in international conservation agreements such as the Convention on Biological Diversity (CBD).

The threats to our rich biological and intellectual heritage come from the expansion of western style industrial intellectual property rights regime to biodiversity.

The CBD recognizes that traditional knowledge, innovations, and practices are of vital importance to the conservation of biological diversity and that local, indigenous communities have a close reliance on biological resources. Their livelihood and lifestyles often depend on it and are shaped by it. As such, in accordance with Article 10(c), contracting parties are obliged to protect and encourage customary use of biological resources in line with traditional cultural practices to conserve and sustainably use these resources. Further, according to Article 18.4, the contracting parties are also obliged to develop and use indigenous and traditional technologies to conserve biological diversity and sustainably use its components.

The Convention on Biological Diversity

In 1992 the international community adopted the CBD at Rio de Janeiro at the Earth Summit, along with the United Nations Framework Convention on Climate Change. These two international environmental agreements are the fragile threads that hold our future.

The CBD was seen as a way to reclaim lost ground on the unchecked exploitation of genetic resources in developing countries. While no mandatory obligations arise out of this legal instrument it lists three important aims:

•Conserving biological diversity

•Sustainable use of resources

•Fair and equitable sharing of benefits that arise out of commercial use

Though it is still a form of Northern ‘taking’ with which a ‘giving’ to the South is