DHDI

Frank Muttenzer 05/1998

fmuttenzer@hotmail.com

A. The status of indigenous medical knowledge in scientific discourse

Given that medicinal plant research continues to be considered a fruitful approach in the search for new drugs and that until now fewer than 2 percent of higher plants have been thoroughly screened for biological activities, science is confronted with an important practical question. How should it advance in the search for drugs with such a vast number of plants to be studied? It has been noted that the strategy of blind-screening or even the more guided approach of selecting species that belong to families likely to contain certain compounds require enormous investments of money and time. This being so regardless of whether plant constituents are used directly as therapeutic agents, as basic materials for the synthesis of drugs or as models for pharmacologically active compounds, it may be more efficient to choose simply to learn from the peoples who already use the flora for medicines. The so-called ethnopharmacological method involves the joint efforts of anthropologists, botanists, pharmacologists and chemists and has insisted on the holistic nature of traditional medical systems, because they consider illness, healing, and human physiology as a series of interrelationships among nature, supernature, society, and the individual. Therefore, detailed ethnographic research is said to be crucial in understanding traditional drug use and medical practices . But besides its practical usefulness for the pharmaceutical industry, the “interdisciplinary scientific exploration of biologically active agents traditionally employed or observed by men” raises other questions. In order to make its claims to objectivity, the ethnographic method indeed requires a thorough understanding of the cultures hosting the relevant knowledge, as two British enthnobotanists would have it:

“We find healers mainly by asking people to identify the individuals to whom they turn when they are sick. Having located healers, we take pains to explain our mission to them and to tribal chiefs. This process is analogous to “informed consent” in clinical settings. The interactions go most smoothly if Western researchers are trained in both botany and anthropology. If the healers are amenable to teaching us, we spend many weeks, months or even years with them and take careful notes on the properties and uses of the plants they show us. During such fieldwork, we attempt to live in accordance with local customs, and we usually learn the local language".

If, and this happens to be an essential human rights concern, there should be an ethical responsibility to respect the studied cultures beyond their immediate commercial utility, such a responsibility would require researchers to ask if and how it is possible to understand those cultural systems in terms of modern science without getting it wrong. But quite independently, an analysis of the relationships between medicine and culture is also found in another line of thought, suggesting new ways of looking not only at traditional healing but also at modern medical and pharmaceutical science.

Besides the already mentioned holistic connotation scientific thought has ascribed to it, the term “traditional medicine” simply refers to ways of protecting and restoring health that existed before the arrival of modern medicine. These approaches to health belong to local traditions in each country where they have been handed down from generation to generation. They are recognised for often being very sophisticated because they have had to meet the needs of the local communities for many centuries. Due to such considerations, the World Health Assembly has in its resolutions drawn attention to the fact that most of the populations in various developing countries around the world depend on traditional medicine for primary health care, that the work force represented by practitioners of traditional medicine is a potentially important resource for the delivery of health care and that medicinal plants are of great importance to the health of individuals and communities. The Recommendations from the South American Regional Conference of GIFTS began by reiterating this broad framework of traditional health systems stating that they are part of a culture and “are based on spirituality, the wholeness of the person, the maintenance of balance, and harmony with habitat and nature”. In practical terms, this would include the respect for the professional ethic of traditional practitioners and that indigenous health services be accepted and made available by Western health services, as has been the case in Mexico, where traditional services are part of official health policy. Traditional health perspectives, it has been said, should also be taken into account by the medical curriculum. Finally, all of this is seen to require changes in legislation to protect, conserve and apply traditional health knowledge. At the same time it has been noted that the value of traditional medical knowledge is only very slowly being recognised in practice and that the hegemonic tendencies take the opposite direction. Research strategies viewing traditional medicine as raw material from which synthetic products can be developed skew national research endeavours away from studying indigenous health systems as valid approaches. The latter contributes to the further marginalisation rather than to their evaluation in the service of improved national health care. Research data gathered on traditional medicine, it is said, tend to be in the form of pharmacognostic research on individual medicinal plants and much of the research has been designed not to evaluate the potential of traditional medicine to contribute to the health care of peoples, but, rather, to identify bioactive agents which can be subsequently developed into synthetic drugs.

Modern medicine implied the reconstruction of the doctor as a specialist and professional by redefining him as an applied scientist rather than a healer. Many critiques of modern medicin therefore assume that the most essential in medical practice in any context is not the cumulating knowledge of physiology and drugs but the interpersonal relationship between doctor and patient:

“The relationship between the modern doctor and his patient, one part of the critique says, is increasingly characterized by attempts made by modern

medicine to methodologically decompose the patient as person. True to the traditions of the positivist sciences, medicine tries to change the patient from an experiental reality to an experimental one, move him from his life world to the laboratory, reduce him from a molar to a molecular reality, and reinterpret his disease as somatic or psychological rather psychosomatic.”

Concomitantly, the self-doubt of the modern doctor is essentially a personal self-doubt centred on the doctorís skills or around empirical medical knowledge, rarely around the philosophical and cultural assumptions of modern medicine. The Indian philosopher Shiv Visvanathan argues that the empiricist principle of falsifiability itself has possibly suppressed many forms of critical consciousness within modern medicine and that certainly the principle has not allowed the kind of folk wisdom which served as a baseline of criticism within many traditional systems of healing. By disconnecting itself from community life which organizes common sense as a culture, modern medicine is said to have disconnected itself from the common sense which endorses scepticism in many traditional cultures of medicine. Moreover, in societies where modern medical technology is available only in a few pockets, where the number of modern doctors and hospital beds are few, and where the capacity to pay for modern medical facilities is poor, the negative effects of the cognitive un-connectedness of modern medicine are reinforced, because drugs with their easy and wide reach are expected to take over the responsibility for public health from the doctor and health care agencies, and in fact from society. Drugs become an end in themselves.

As has been mentioned already, the research interest in indigenous medical knowledge are mainly formulated in the context of drug development. E. Elisabetsky specifies plant selection, "leads" from traditional use that allow for narrowing the pharmacological study, leads from traditional modes of preparation that provide clues to active chemical compounds and lower laboratory investments as the four major inputs of indigenous knowledge. And she asks why an informant or an indigenous group would resist cooperating in a research effort "that could lead to the discovery of a drug, one that in principle could benefit all who need it". In the U.S., the top four categories of drug development have been analgesics, anti-infectives, cardiovasculars, and psychopharmacologics/neurotropics. At the same time, the WHO cited malaria, diarrheal diseases, tuberculosis, leprosy, and sexually transmitted diseases as the major health problems in developing countries. One can argue, as Elisabetsky notes, that these health problems are the consequence of poverty, poor living conditions, and a lack of resources to acquire the proper medicines. In this context, she says, it is understandable that informants or governments ask themselves why they should preserve the forest or cooperate with yet another research effort that, considering past experiences, will not benefit all parties involved. But they also might object to a kind of development where what is in their view a matter of personal suffering and personalized healing becomes subject to the demands of large-scale engineering, planning and intervention. S. Visvanathan holds that development is no longer the mere treatment of the economic ills of a society, but that "the development of healing as a science has become an important plank in the ideology of development". In order to be development, it has to take the benefits of modern medicine to the traditional, underdeveloped parts of the society, remove diseases and pestilences by modern knowledge from the lives of the citizens and bring the entire population of a country within the ambit of modern medicine, taking it out of the dominion of folk wisdom, domestic remedies and non-modern healers. According to Visvanathan, one of the founding myths of development follows an obviously circular reasoning. Development is good, the argument goes, because it brings true health to everyone; development is health because healthiness takes you towards or gives you development; and finally, development is healthy because the language of development extends the modern language of healing not only to the individual but also to the society. If the validity of such critique is assumed, what in the view of an indigenous person most accurately defines modern medicine would be that it is inextricably linked with a model of society in which the human body is politically redefined as either a carrier of hedonistic pleasures or a vehicle of disease and suffering. Such a thing is possible because claims to power over the human body are endorsed as a domain of social knowledge and intervention, ventured by organized centres of power in the society. From an indigenous vantage point, modern medicine would then be no less "holistic" than traditional medicine appears to modern science, because its defining characteristics are as much related to an underlying worldview, one based on enlightenment progress, economic growth and development for the underdeveloped. On the other hand, the fact that indigenous knowledge is still mainly used as an intellectual primary resource to be absorbed and reframed by modern science without being recognised as having its own standards of systematic coherence would suggest that this might be due to the inherent logic of modern institutions rather than the objective nature of things.

B. Indigenous Knowledge in Legal Discourse

1. Problems with intellectual property rights as a resource for indigenous peoples

When pharmaceutical companies visit tropical areas to engage in molecular prospecting and indigenous knowledge leads to the identification of commercially promising biological substances, when a plant turns out to have a heretofore unknown organic molecule which is later approved as a new drug, earning the company billions of dollars, not a penny is usually returned to the tribe whose knowledge contributed to the financial success story. At the same time, indigenous societies largely outside the cash economy are facing cultural extinction that could be avoided with leadership and cash. So, indigenous advocates have asked, why shouldn't indigenous peoples own their cultural knowledge and secure a just share of the money it generates, if they allow it to be used elsewhere. In this line of reasoning, intellectual property rights are supposed to provide a legally workable basis by which "indigenous societies would own their cultural knowledge, control whether any of that knowledge may be used by outsiders, and require a share of any fiscal return that may come from it commercial use". With a view to creating workable legal instruments, a broader understanding of the right to intellectual property has also been referred to in the literature as "Traditional Resource Rights", including international labor law, human rights laws and agreements, economic and social agreements, intellectual property and plant variety protection, farmers rights, environmental conventions and law, customary law and traditional practice, as well as cultural property/cultural heritage. A Technical Conference on Indigenous Peoples and the Environment, held in Santiago de Chile in May 1992, recommended that the United Nations System take effective measures to protect property rights of indigenous peoples, including intellectual property, cultural property, genetic resources, biotechnology and biodiversity (UN Doc. E/CN.4/Sub.2/1992/31). Other voices have nevertheless called for giving the notion of IPR more precise contours, with a critical view on their usefulness in the existing form for indigenous concerns.

According to the concept of the "labour theory of value", goods have value because of the input of labour, regardless of whether it is held that labour or capital should be the claimant of surplus value. And since natural law or human rights reasoning entitles people to the fruits of their labour, the expectations of indigenous people of reward for their contributions seem to fit well within the concept of intellectual property rights. But sociologically, it has been noted, the operational justification of intellectual property rights systems is one of economic incentives, not of personal rights. Copyrights and patents are for new knowledge, not for knowledge that already exists, they give individuals or legal entities rights that are denied to other members of their society and thirdly, they are limited in time. After a certain time, the rights of ownership lapse and the material goes into the public domain:

Each of the three characteristics stem from a mainly Eighteenth Century European philosophy about social progress. In its barest form, the philosophy is this: A society thrives on progress. To foster creativity, creators must foresee the prospect of benefitting materially from their works. Within Eighteenth Century Capitalism this meant (and still means) vesting creators with the rights of monopoly ownership. But that monopoly must be for only a finite period of time so as not to prevent further development and lower price that comes when the innovation is available to all.

Right to intellectual property, then, reward the innovator sufficiently to encourage creativity, but lapse later, so that further development and economic competitiveness can take over. Ideally, intellectual property rights help to ensure that development is possible at all in the first place and that it does not subsequently produce its own pathologies in an uncontrolled manner. This underlying rationale for intellectual property rights has been reaffirmed by the GATT/TRIP agreements, which are nevertheless criticized on grounds that the resulting growth model is unhealthy. The Uruguay Round for the first time considered intellectual property rights a subject of international trade. The agreements provide that developing societies benefit of a delay between five and ten years for patent legislation, after which they will not be allowed to imitate or adapt technology created by others, a possibility largely used by the rich countries at the time of their industrialisation. Poor countries will then have to bye the licenses. From initially being a means to promote industrialisation, patent protection has thus tended to be monopolized by the technologically advanced industries. As regards the patenting of genetic resources, GATT/TRIP does not (yet) require States to legislate patent protection, although there are minor exceptions. The difficulties for arriving at an equitable intellectual property rights protection have been recognised in the context of the conservation of phytogenetic diversity, in which respect the agreement obliges to adopt whatever system for the protection of new plant varieties (UPOV or a suitable alternative) .

In addition to the fact that indigenous peoples mostly live in countries without technologically advanced industries and that they will potentially suffer from the unequitable trade-off by which an existing system of intellectual property rights is consolidated in exchange for the promise of technology transfer which even if it took place would not necessarily benefit indigenous peoples, it has also been noted that their claims are different in nature from what is aimed at with intellectual property rights. When reference is made to compensation for past selection and conservation of agricultural plants, or for the use of natural products for medicinal purposes which can provide valuable indicators of usefulness for modern pharmaceutical companies, those requests emphasize past contributions in a way fundamentally different from the economic incentive approach which focuses on future investments. The one is not better or more important that the other, says W.H. Lesser, but they are different, one is established policy while the other is not. With a possible future exception for substantial innovations in the field of patenting of living material, the available tools for the protection of indigenous science rest thus on the conventional, that is, the economic incentive philosophy of intellectual property. This concept seriously limits the utility of patents for protecting indigenous peoples' heritage.

a) patents can only be applied to new knowledge whereas traditional knowledge is conceived of as always having existed before (the (questionable) dichotomy tradition/innovation). A product or process is usually not patentable if it is already known in some other place, and it has to be described in a way so it can be reproduced. For that reason, plants or animals can only be patented when they have been created through a process which can be described, controlled and reproduced, as is the case of biotechnology. Again, the focus is on products, thereby excluding certain contributions from patentability, such as "discoveries, scientific theories and mathematical methods" as well as "schemes, rules and methods for performing mental acts". So, indigenous systems of curing are outside the scope of what is defined as an "invention".

b) patents are normally issued to individuals and not to cultures or populations. This raises a series of organisational problems, not only as regards patent ownership but also with respect to contractual solutions and mechanisms for technology transfer.

c) patents are limited in time, whereas indigenous peoples'control of their heritage is meant to be sustainable.

W.H. Lesser has suggested that referring to indigenous rights as intellectual property rights "confuses the issue and flusters practitioners who have a personal commitment to the integrity of the existing mechanisms. They, much more clearly than we, recognise the differences and are concerned by them, concerned for any indirect implications on existing laws and operations". According to this author, there is no merit in raising the issue if nothing is to be gained and he suggests the term reserved rights, for rights are being reserved until a time when the material may be recognised to have commercial value. On the other hand, it should be noted that the issues are generally discussed under the heading intellectual property rights and it is as such that they are gradually being taken up by grass-roots movements of indigenous peoples.

2.Contracting, ethics of conduct and indigenous strategies

Quite inevitably, the unpracticability of intellectual property rights systems leaves the sensitive issue of medicinal plant prospecting among indigenous populations to the "law of practice". It is widely suggested that contractual agreements and codes of conduct, which can be considered standard contracts, respond more adequately to indigenous concerns than intellectual property rights. But indigenous voices indicate that they are frought with their own problems. Contractual arrangements used by transnational corporations usually involve contracts with local universities and non-governmental organisations who actually collect the samples. They entitle those institutions to a share in the sale of products obtained through the samples. In the compensation-for-biodiversity agreement between Merck Pharmaceuticals and INBio (Instituto Nacional de Biodiversidad) of Costa Rica, the company paid $ 1 million for collecting and screening privilege. If any new products are developed, Merck retains the patent rights, but must share profits with INBio, who, in turn, will invest the funds in conservation activities. Darrell Posey notes that indigenous peoples and local communities do not figure in this agreement and that there is no guarantee that they will even be consulted on conservation priorities and projects. For Steven R. King of Shaman Pharmaceuticals however, when traditional knowledge is being studied, it is important that pharmaceutical, academic, or other research groups return benefits to the local cultures and countries. When a potentially marketable plant product is developed, equitable agreements between the researchers, the culture and the country from which the knowledge was derived are essential, as well as a commitment to "immediate reciprocity by developing projects that will enhance the welfare of the biocultural diversity and the health of the forest people". As requests from local people are often healthcare-related, Shaman Pharmaceuticals has developed unified projects with ethnobotanists and conservationists working with healthcare professionals. The Company has set up a non-profit organisation, the Healing Forest Conservancy, which implements programs with the following objectives:

"to strengthen indigenous peoples organizations and foster communication between indigenous groups and the outside world; to integrate local people into programs for species collection, identification and inventory of local genetic resources by merging indigenous and modern scientific methods; to promote sustainable, ecologically-sound development through local harvesting of products from forests so as to prevent forests from being cleared for timber extraction;etc."

Shaman Pharmaceuticals has also provided direct support for laboratories in developing countries working on traditional medicine, as well as for invidual scientists from developing countries who are also invited to work in the company's laboratories.

Agreements of the kind described above are generally inspired by an ethic of reciprocal conduct to be followed by all people doing reserach of any type with local and indigenous people, codified by numerous international professional societies such as the Society of Economic Botany, the International Society of Ethnobiology, the American Anthropological Association and many others. If, "five centuries after the Old and New Worlds came into direct collision, it is no longer a question whether indigenous people should be beneficiaries of products developed based on their knowledge", how this should be done is less clear than it appears in Shaman Pharmaceutical's philosophy. Darrell Posey has noted that in 1979, the Organisation of African Unity urged that herbal medicine research be carried out in secrecy to prevent multinational companies form developing new drugs and selling them back to developing countries at high prices. At any rate and in exchange for whatever development activities, transnational corporations are interested in commercializing the new drugs they develop. And there is no guarantee that the constraints of a system of economic incentive will correspond with the interests of indigenous peoples in controlling their heritage. The obvious problem of contractual agreements, as D. Posey holds, is that local communities in general, and indigenous peoples in particular, are benefitted only if the involved organisations so desire. Existing agreements have been criticised on precisely these grounds, since indigenous people are no longer interested in "intermediaries" or "patrons". That there might be conflicts of interest becomes clear when one tries to analyse what simple concepts such as "informed consent" stand for in practice. The Draft Code of Ethics of the International Society of Ethnobiology, developed during the Fifth International Congress of Ethnobiology, held in Nairobi, Kenya, in September 1996 defines the notion of prior informed consent as follows:

a) to identify the legitimate authority representing the indigenous peoples concerned. It will be essential for there to be early consultation and notification given by researchers to indigenous peoples taking into account their own local consultative procedures and custom;

b) to ensure that there is an adequacy of information and sufficient level of information provided;

c) to ensure that there is sufficient time to assess information, proposals and to formulate a response;

d) to provide whatever assistance may be necessary to ensure full and adequate understanding of the research to be undertaken;

e) to record in writing or some other appropriate form the consent of the community, preferably in the language of the indigenous peoples concerned;

f) to ensure that the local people are not subjected to undue pressure, duress or inappropriate conduct or inducements in order to obtain their consent and to recognize and respect the right of indigenous peoples to say "no";

g) to ensure that consent is freely and willingly given;

h) to ensure that the customs, protocols and procedures of the indigenous peoples are not compromised or circumvented in obtaining consent;

As this example shows, what exactly is informed consent and how it is best achieved are difficult issues when dealing with communities who have no or little modern scientific knowledge. It is thus often held that explaining a research project to the full understanding of rural isolated people is almost impossible and sponsors place considerable reliance on anthropologists who have had connections with the target population to cross the divide. But if anthropological comparison of modern and indigenous systems of knowledge can show that, even if differently so, both are 'holistic' because that is what culture is all about, the very notion of a "target population" becomes problematic. If their solutions to curing might be as valuable as ours, obtaining prior informed consent would then call for a revision of the all too obvious pattern of informing. Indigenous peoples might possibly want to obtain consent to another approach in medicine, pharmacy and medication.

What could be, in such an interpretation, a useful strategy currently available to indigenous peoples for protecting and maintaining the control of health-related, medical and pharmaceutical knowledge as a part of their intellectual and cultural heritage? Erica-Irene Daes concludes in her study that indigenous peoples could refuse to communicate their knowledge, as far as agreements do not provide for confidentiality, adequate use and economical benefits and that this seems to be the most efficient approach to protect the ecological, medicinal and spiritual heritage. W.H. Lessers suggestion to distinguish between the ownership of knowledge about bio-genetic resources and the ownership of those resources themselves points in a slightly different direction. He maintains that," if would-be users have both the resources and knowledge about use, nothing remains to withhold. If however access can be regulated then the ability to exclude connotes bargaining power". This can only be achieved when States adopt and enforce access laws, because it would otherwise be legal to remove whatever genetic materials. It further requires that States as the holder of rights over genetic materials agree not to allow access before all indigenous and local groups claiming contributions are satisfied. What is aimed at primarily is to increase the negotiation power for indigenous groups. How such negotiating processes can be institutionalized once minimal legitimate consent on certain issues is established will be a matter of innovative practice and experimentation by both local communities and internationally recognised governments. "Scientific" expertise by lawyers and anthropologists cannot produce the solution but it should be able to provide a framework for necessary conceptual critique.