The Convention on Biological Diversity solves for protection of Indigenous traditional knowledge under existing IPR regimes.

(Marcia Ellen DeGeer holds a Juris Doctorate from the New England School of Law, and is now a lawyer specializing in business. 2002, Biopiracy: The Appropriation of Indigenous Peoples’ Cultural Knowledge. New England Journal of International and Comparative Law, Vol. 9 no. 1, pages 179-208. CPSW - GHS-LHM//)

VI. POSSIBLE SOLUTIONS Patent law is not an effective protection for Indigenous Peoples because they fail to meet the requirements of patentability. Also, international bodies offer little protection, as many nations do not sign onto the treaties. They have little enforcement power because of the lack of willingness to adhere to the mandates, and competing interests get in the way of continuity. Four possibilities are outlined below that could aid in protecting Indigenous Peoples’ rights in plants and cultural knowledge. However, each comes with their own drawbacks. Ultimately it will take a combination of laws, resources, and a global willingness to support Indigenous Peoples to remove the impediments to protections. A. Convention On Biological Diversity. The Convention on Biological Diversity (CBD) has the potential for holding countries accountable for their Indigenous Peoples rights. The TRIPS agreement is in direct opposition to the CBD, which aspires to conserve the world’s biological resources and to advance sustainable development. Both India and Mexico have ratified the treaty but although the United States through the Clinton administration signed the CBD in 1993, Congress has yet to ratify it. There are three aspects of the CBD that pertain to the preservation of cultural and biological diversity contained in article 8(j). Article 8(j) states: Subject to its national legislation [1] respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and [2] promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and [3] encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices[.] In order for these goals to be effective, countries that have ratified the treaty need to put pressure on the United States to ratify and abide by the objectives of this convention, the TRIPS agreement needs to be altered to include these goals and each nation needs to individually incorporate these goals into their intellectual property regimes. The CBD considers Indigenous knowledge to be “traditional technologies” that are equal to the western capitalist system. The Convention states in Article 18(4): The Contracting Parties shall, in accordance with national legislation and policies, encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of this Convention. The CBD is the first international treaty to recognize the importance of the Indigenous Peoples’ role in “gathering and preservation of cultural knowledge regarding regional biodiversity.” The CBD also recognizes that Indigenous Peoples should benefit in the monetary gains of their cultivation, preservation and innovations. The TRIPS agreement could be altered to agree with the United Nations Convention on Biological Diversity. The failure of the United States to ratify the treaty is an affront to the value of the Indigenous Peoples’ knowledge.