The Nagoya Protocol and nitrogen-fixing maize: Close encounters between Indigenous Oaxacans and the men from Mars (Inc.)

Abstract

In this article, we discuss the Nagoya Protocol and its implications for access and benefit-sharing (ABS) agreements related to genetic resources and biodiversity. We analyze a case study of the appropriation of olotón, a maize variety with an unusual nitrogen-fixing trait grown in many communities throughout Oaxaca and probably beyond that region. Samples of olotón were acquired by scientists affiliated with Mars, Inc., the University of California-Davis, and the University of Wisconsin-Madison. The article unpacks how the olotón ABS agreement with the single Oaxacan community of Totontepec became a topic of controversy despite its approval by the Mexican government under the auspices of the Nagoya Protocol. We pose the question: Is the olotón ABS agreement to be considered “fair and equitable” or could it be an example of the unjust appropriation of genetic resources known as “biopiracy”? To answer that question, we proceed to analyze the “procedural,” “distributive,” “commutative,” and “representational” forms of justice as they apply to the acquisition of olotón. The Nagoya Protocol was created in part to impede biopiracy by providing a framework for acquiring and using biodiversity in a “fair and equitable” way, but the Nagoya Protocol’s provisions are ambiguous and allow for confidentiality clauses that favor the acquisition of genetic materials in ways that we do not consider fair and equitable. We join other researchers and academics who cite the need for an improved approach for ethically accessing, using, and sharing genetic resources and knowledge.