Protecting the rights of indigenous peoples: Can prior informed consent help?

Abstract

This chapter assesses the meaning, origins and uses of prior informed consent and the assumptions underlying its application to traditional knowledge and biological resource transactions. It also deals with the complexities that need to be overcome before it can become a workable policy tool. Using a case study approach, the chapter shows why applying prior informed consent requirements in very diverse and extremely different cultural settings, and in very tense political contexts, can be immensely challenging. Even with the best intentions and the most carefully drawn up plans, things go wrong. It also shows that the concept may in many cases be inapplicable because a great deal of knowledge and resources is already in free circulation and can no longer be attributed to a single originator community or country. This should not, however, lead us to conclude that there can be no moral obligations even in the absence of legal ones. As a consequence of the manifold and complicated linkages between drug discovery and marketing, obtaining prior informed consent may do little to resolve biopiracy in its broadest sense. However, this is not to suggest that it is a useless concept. Indigenous peoples have a right to expect bioprospectors to request their consent formally. Still, obtaining prior informed consent is not a substitute for respect of basic human rights. Prior informed consent should be seen as a necessary but not a sufficient requirement for the establishment of more equitable bioprospecting arrangements - but only if it is acquired according to procedures that are effective, culturally appropriate, transparent and flexible. © 2009 Springer Netherlands.