Sunday, December 23, 2007

Thesis for course on Indigenous People's Law

At What Price?:
Resistance to bioprospecting in cell lines derived from indigenous populations and the human cost of inaction

M. D.
Thesis: Law of Indigenous Peoples
Professor A. O., 04/24/07

“We’ve discovered the secret of life.”[1]
--Francis Crick, co-discoverer of the DNA molecule, February 28, 1953


Since the discovery of DNA in 1953, genetics has been the frontier of medical research, and the locus from which hope could spring eternal for millions of desperate people. In the intervening half-century between its discovery and today, the biological text of humanity has slowly, but surely, revealed to researchers its secrets. So much of our DNA is understood that, as humanity marches through the beginnings of the twenty-first century, we are in a unique position to alter our very natures.[2] That such advances herald the dawning of a new era of medicine is certain. That such a new era spells relief for present and future sufferers of a whole range of diseases that have genetic bases is also certain.[3] What is uncertain is the extent to which humankind is willing to sacrifice certain values to achieve these ends.[4]

The cultural battles between those advocating the responsible use of scientific advances in genetics and those advocating a moratorium on the use of such new technologies has a storied history. Genetically altered plants and animals, human-created bacterial species, the use of embryonic stem cells, therapeutic cloning, and assisted reproductive technologies have all been met with popular resistance. This policy disagreement concerning the appropriate uses of scientific knowledge and technology has also taken shape in an arena less well known than those mentioned above: bioprospecting.[5]

Bioprospecting[6] is objected to on numerous grounds by indigenous communities around the globe, for a variety of reasons which will be explored in this paper. This article will focus on the harvesting and acquisition of cell lines derived from the genetic material of indigenous communities – a practice which has garnered strong opposition – and will chart some of the obstacles that the international community has placed in the path of researchers seeking to pursue scientific work in this arena. It is the contention of this paper that barriers erected against bioprospecting by indigenous groups, states, and international organizations violate fundamental human rights, and that this resistance to bioprospecting must end.

The truth of this conclusion will be shown in the following sections. Part II of this paper will give a brief sketch of the main arguments presented both by scientists and indigenous people regarding the practice of bioprospecting. Following these arguments, parts III and IV of this article will attempt to explain why positive application of international instruments in this arena yields little fruit. Part V clearly explicates the difficulty with applying extant international instruments to this issue, and provides an analytical framework for determining whether bioprospecting should be allowed or prohibited. Finally, Part V will also utilize this analytical framework and explain how to navigate this ambiguous legal landscape by charting an argument sounding in international law and natural law which should serve to remove the current barriers to research.

II. BACKGROUND: Scientific Interest and Indigenous Objections

A. Scientific interest in the genetic resources of indigenous communities

Scientific researchers are highly interested in the untapped sources of knowledge and genetic potential of indigenous communities. Investigations into their pharmacological understandings of the plants and animals around them have produced results that are astonishing, both for their utility and profitability. It would be warranted to suggest that these scientific and medical researchers have only scratched the surface of what indigenous communities can teach us with their less-advanced chemical and pharmaceutical understandings. Among the results produced so far are examples like the following:

Quinine, a chemical used to cure cases of malaria, was discovered from the medical lore of Andean natives.[7] This drug has been successfully used to combat rising death tolls due to malarial parasitic infections, in large part due to the declining usefulness of previous anti-malarial drugs.[8] A plant native to Madagascar, the rosy periwinkle, contains a chemical found to effectively combat certain types of cancer,[9] an important find for those suffering from cancer.[10] Indigenous communities in India have used parts of the neem tree as a natural insecticide, and the juice from the tree has been successfully used to treat scabies and other skin disorders.[11] Ethiopian tribes revealed to Western pharmaceutical companies the productive uses of the endod berry, and it has been used to treat certain parasitic infections as well as creating a crustacean-killing agent which may end the zebra mussel invasion which threatens the marine ecosystems of the Great Lakes.[12] A pair of African plants produces a sweetening agent thousands of times sweeter than sugar, but which is calorie-free,[13] holding a potential key for lowering obesity. Dozens of other significant advances, including disease resistances for staple crops and plants that produce natural insecticides,[14] have been discovered in the farming and medical lore of indigenous peoples.[15]

Examining the genetic material of peoples native to indigenous communities is a newer form of bioprospecting, and so discoveries in this arena are not yet as prevalent. Nonetheless, significant findings from this type of research have offered substantial hope for the future of research on the genetic diversity of the human species. A particularly noteworthy discovery was the finding that a part of the genetic code of members of a Papua New Guinean tribe might be able to confer a natural resistance to adult leukemia,[16] a finding that should cause hope for future generations.[17]

While the entirety of the human genotype is of interest to researchers seeking to understand and combat disease, the genetic material of indigenous communities possesses unique and special properties which allow specialized types of research that are not able to be carried out with genetic material from dominant populations. Both random and non-random mutations (both beneficial and deleterious) alter DNA between generations, and in the absence of selection pressures which eliminate members of a population the population will undergo what is known as genetic drift.[18] Smaller populations are more prone to this effect than are larger populations.[19] Further, indigenous communities are more likely to have genetic differences from dominant, larger populations due to their isolation – something known as the “founder effect.”[20] These two factors have created in indigenous people a genetic code different from that of dominant groups, allowing for useful comparative study. In short, indigenous communities, because of their size and usual genetic isolation, are tailor-made for genetic research concerning the genetic bases of diseases. Because of this unique utility, self-replicating cell-lines[21] derived from this genetic material possess nearly unparalleled research potential.

B. Objections of indigenous communities to cell-line bioprospecting

There are numerous objections that indigenous communities level at the practice of bioprospecting, ranging from the plausible (difficulty in identifying the purposes of researchers after DNA has been sent to cell banks that lend material to researchers across the globe) to the highly unlikely and far-fetched (forced sterilization for those carrying particular genes, and genetically targeted bio-warfare).[22] This article will not attempt to deal with every objection made against cell-line bioprospecting, but ink spilled to recognize some of the more plausible objections is not ink wasted. These arguments range from the inadequacy of compensation for genetic materials harvested from individuals in indigenous communities to broad denunciations of commodification of the natural world. The different types of arguments appear to be able to be divided into two categories: those which object to the manner in which commodification of the genetic material takes place, and those which object to the commodification of the genetic material itself. Each will be addressed in turn.

Many arguments from the first category of objection (those which object to the manner in which commodification takes place) will merit serious consideration from a Western legal standpoint. Some groups are concerned with the adequacy and reliability of compensation being paid for the harvesting of genetic material. International protocols regarding scientific research involving human subjects requires that the benefits to the subject at least equal the risk to the research subject.[23] Typically, since the beneficiaries of the research are not specifically the indigenous people of the community, researchers offer other benefits as an incentive to participate in the research – short-term medical attention, technology transfer, training opportunities for students, or promises of royalties for any commercial products developed from the research.[24] For an indigenous community to accurately track the resultant commercial applications of research on an international scale to watch for violations of a royalty agreement is surely difficult.[25] Finding a way to gain redress for violated agreements can be difficult, and frequently monetary damages are the only available remedy – a frequently unsatisfactory result for some groups.[26]

A second argument advanced against cell-line bioprospecting by indigenous communities relates to the overall balance of benefits created by research on their genetics. Having experience with bioprospecting in other areas (such as those listed above in Part II.A), indigenous communities realize that some of their knowledge has created vast amounts of wealth for Western companies,[27] while yielding very small accretions to wealth for the indigenous communities themselves.
This first category of arguments is quite cogent. Unless paid for participation in research in advance, finding remedies for breaches of participation agreements can be a time-consuming and expensive process. Even when agreements are made and upheld, hindsight can frequently cause indigenous communities to feel as if they have been taken advantage of in the negotiation process, due to the relative paucity of their compensation. These arguments are parsed in typically Western understandings of commercialization and capitalism, and are easily grasped.
The second category of arguments objects to cell-line bioprospecting itself (as opposed to the first category which objects to the processes by which commodification takes place). As a result of these arguments’ metaphysical and ontological natures that do not have close parallels in traditional Western thought, these arguments are frequently more difficult for Western audiences to understand. Nonetheless, these arguments are just as important and serious to consider as those from the first category.

To some indigenous cultures, the human body (and parts thereof – blood, hair, etc.) is sacred.[28] To invade the body in the name of research, or to take samples of hair or blood (common ways to obtain DNA for cell-cultures), is seen as a violation of ethical principles of the highest order. Apart from the harvesting of these materials, the use of these materials can be just as affronting to tribal sensibilities.[29] Creating cell-lines (which, absent outside negative intervention, are able to self-replicate forever) is akin to creating immortality. Introducing genetic material from one organism into another (the ultimate hope with regard to genetic engineering)[30] could violate the sanctity of the holistic nature of living things.[31] These concerns are warranted and worrisome for those indigenous peoples who highly value that which is natural.

Other groups find themselves at odds with genetic science altogether, in light of the mechanistic view the science takes of living organisms.[32] By viewing the living organism as an input/output device (change the DNA sequence, observe the result for changes), scientists might be endangering the delicate balance of nature. If living things are viewed as interrelated with everything else in an environment, the existence of ‘ripple’ effects from tampering with one part of an environment might occur.[33]

Absent traditional European concepts of individualized property ownership, some indigenous communities find the concept of alienating their genetic material to be foreign,[34] meaning that ‘consent’ obtained from individuals for their participation may not be fully informed. Some groups do not hold the concept of alienability of knowledge or genetic material to be a matter of individual consent, and require group consent to such transferals.[35] Some object to the transfer of some types of knowledge or material altogether because the ‘ownership’ of such things carries concomitant obligations and duties.[36]

In some cases, DNA samples are able to be collected from deceased (even long-deceased) individuals.[37] To some native groups, though, this represents an unconscionable violation of the sanctity of their ancestors.[38] While there are no reports of researchers taking DNA from dead individuals covertly, the case of the Kennewick Man presents an apt example from which to understand this objection. In 1996, a skeleton was found along the shores of the Columbia River in the State of Washington.[39] Scientists estimated the skeleton to be more than 9,000 years old (meaning that this individual inhabited the Pacific Northwest at the earliest part of human habitation of the North American continent).[40] The condition and age of the skeleton provided scientists and forensic anthropologists with unrivaled research possibilities that might further understanding of the natures and types of people who crossed the Bering land bridge.[41] Native American tribes in the region demanded that the skeleton be buried immediately without further scientific investigation, and found the idea of any such investigation to be a profoundly offensive intrusion into the peace and sanctity of their ancestors.[42]


International law is not silent on the matter of bioprospecting, but it is quiet. While not addressing the issue explicitly, numerous international instruments have language which might bear upon the practice. Even if the international community hasn’t reached a unanimous consensus on the practice, academics and legal scholars whose voices resonate in international legal circles have made their position on the issue to be fairly clear.[43] Indeed, such is the overwhelming crush of scholarly articles against the practice of bioprospecting that a search of the relevant literature revealed no articles which appears to be a forward defense of the acts of bioprospectors, and only a handful which approach the position indirectly.[44]

International agreements are binding on states party to the agreement.[45] Even if a State refuses to ratify a particular international agreement, if acceptance of the international instrument (or provisions thereof) become the practice of the international community, the obligations of the instrument or provision can rise to the level of jus cogens – an international obligation arising from customary law.[46] The United States and the countries of Western Europe have, nearly without exception, ratified the international instruments herein discussed, and so should be considered bound by their terms on the international stage.

Among the many international instruments which impose obligations upon States signatory to the instrument, an international human rights scholar can locate documents of a specialized nature, aimed at particular situations and contexts, and documents of a more generalized nature which lay out broad organizing principles meant to guide all nations in their interactions with people everywhere. Two main generalized treaty documents bear upon the obligations of Western nations to indigenous communities: The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Each instrument has been signed by the United States (though with some reservations). Several other documents also bear upon the future potential of cell-line bioprospecting, but in each case so examined, the rights enumerated in the treaty instruments significantly overlap the rights discussed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Due to this overlap, the balance of discussion will focus on these two documents.

The Universal Declaration of Human Rights provides that human beings are born “free and equal in dignity and rights,” and that this dignity and the rights in the document are applicable to all people “without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.”[47] Among the rights guaranteed by the Universal Declaration of Human Rights is the right to the “realization… of the economic, social and cultural rights indispensable for [his or her] dignity and the free development of [his or her] personality.”[48] It does not take any superb feat of legal legerdemain to argue that an indigenous community whose worldview, religion, and philosophy are threatened by biological research should be protected from such research in order to allow members of the indigenous community the ability to realize the “economic, social and cultural” rights that are necessary to develop their personalities within their particular social contexts.

The International Covenant on Civil and Political Rights[49] grants to all people under the jurisdiction of signatory states rights against medical experimentation without ‘free consent,’[50] and protects the right to the “inherent dignity” of humans.[51] The former right (against medical experimentation without consent) may have profound implications in the duties of field researchers to engage in substantial explanations about the nature of genetic materials, the uses to which they may be put, and commercial applications which may result from their research (or in some cases, even from the research of unaffiliated third-parties, if the material is to be sent to a DNA bank with lending rights). To the extent that one is persuaded that bioprospecting threatens the dignity of human persons, the latter rights of dignity will sound strongly against engaging in such research. The International Covenant on Civil and Political Rights begins its first substantive provision with a strong recognition of the right to self-determination for “all peoples” and their corollary right to “freely pursue their economic, social, and cultural development.”[52] Such a statement can be read as a ringing endorsement of the rights of indigenous communities (among others) to keep themselves free from outside intrusions which offend the precepts of their cultural and social institutions.


As mentioned above, international law is silent as to a direct condemnation or allowance regarding bioprospecting research practices. Just as one can find support for the objections of indigenous communities in international law, so too can one find support for the position of the bioprospectors who seek to engage in the genetic research at issue. Indeed, the selfsame instruments used above which seemed to be open avenues by which researchers could be barred from harvesting genetic material from indigenous communities contain language which just as easily can be construed to allow bioprospecting activities. Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights can be read in broad support of the underlying goals and methodologies of medical and scientific researchers.

Human cell-line bioprospecting research is largely confined to research on the genetic components of disease and disease resistance.[53] Ultimately the expected benefits from such research are large and should not be dismissed lightly. In Part II.A of this article, it was noted that bioprospecting had yielded a cell-line from a Papua New Guinea tribe which could confer resistance to adult leukemia. The significance of that finding may not be fully apparent without the relevant statistical context in which to place it. Over the years 1998-2003, the World Health Organization estimates that roughly 1,572,000 people died from leukemia.[54] With an average of about 262 thousand deaths per year due to leukemia worldwide, it is not surprising that researchers jump at the possibility to experiment with a new potent tool to stem the tide of human lives devastated by disease.

Leukemia is just one of the new medical advances which might be impacted by cell-line bioprospecting. Other forms of cancer, bacterial infections, and birth defects that lead to lifelong disabilities are among the diseases which may be fought with these new technologies. Even our understanding of a disease process as simple as asthma has been given new life by cell-line technology from isolated populations.[55] The broad implications of these new technologies places another right – the right to life - in direct conflict with the rights of culture and development discussed in Part III above.

The Universal Declaration of Human Rights, in its first substantive provision declares that “everyone has the right to life.”[56] While the Universal Declaration of Human Rights does not take pains to explicate the content of this right, the International Covenant on Civil and Political Rights does so quite clearly. The Covenant provides that everyone has “the inherent right to life.”[57] The article further states that “This right shall be protected by law.”[58] While at first glance, the totality of article 6 would seem to confine the right to life to instances of state-sponsored violence and the death penalty,[59] the General Comment No. 6, which provides a more in-depth understanding of the article of the International Covenant on Civil and Political Rights suggests a vastly different reading is appropriate.[60]

The commentary concerning the meaning and scope of the right to life is instructive. The narrow reading which might be inferred from a reading of the face of the document is flatly contradicted by the commentary which ascribes to the right the broadest of meanings.[61] The Office of the High Commissioner for Human Rights indicates in the commentary that the right “is a right which should not be interpreted narrowly.”[62] Moreover, “the Committee has noted that the right to life has been too narrowly interpreted.”[63] The commentary proceeds to explain that the right to life is more than the right to have the States party to the document not kill you arbitrarily. Rather, the protection of the right requires that the States party to the document “adopt positive measures” to fulfill their obligations to protect life.[64] This right extends beyond criminal and war-time contexts, and should be read to require States to “take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.”[65] (emphasis added)
That such a right is far-reaching in its implications is certain. Further, these far-reaching policy ramifications are placed in a hierarchy by the International Covenant on Civil and Political Rights. Article 4 of the Covenant allows for States to derogate from their responsibilities under the treaty in times of public emergency, provided that such derogations are not made solely for the purpose of discriminating against an enumerated list of social cleavages, like race or religion.[66] Despite allowing derogations of rights that most people would intuit as being sacrosanct,[67] the article continues on to note that absolutely no derogation (even during time of public emergency) is permitted for the right to life contained in article 6.[68] Aside from the few other rights excepted from the allowance for derogation (with which it is an equal), the right to life contained in Article 6 is in the highest echelon of international human rights under the International Covenant on Civil and Political Rights.

That the right to life should be found to be more important than other rights should not be surprising. Having the right to enjoy one’s culture or be free from arbitrary imprisonment rings hollow and futile if one is not protected in having a right to keep living. Continued existence is, after all, a necessary prerequisite to the enjoyment of all other rights.

Since States are required to enact positive law which protects life (particularly in a medical context) the existence of State barriers to medical research which could save millions of lives appears to be a violation of the obligations imposed upon a signatory State by the International Covenant on Civil and Political Rights. This reading of the Covenant is not unique to this author’s work. Other scholars have noted the expansive reading which is to be given to the Article 6 right to life found in the Covenant.[69]


As much as scholars, legal practitioners, and human rights workers might wish it to be otherwise, it is simply not possible to fulfill all human rights obligations to all people, all the time. In the case of aspirational goals (such as those contained in the International Covenant on Economic, Social, and Cultural Rights which provides a human right to food),[70] States party to the instrument need only satisfy the obligations to the best of their ability. Even in cases where States have the power to unambiguously fulfill their international agreements by vindicating the human rights of people in a legislative body or judicial tribunal, it must be recognized that in many situations, vindicating a human right for one party may mean violating a human right of another party.[71]

Situations where human rights can come into conflict abound. For instance, the act of quarantining people who are ill when fear exists as to the communicability of the illness, is an act seriously injurious to the human rights possessed by those quarantined. Rights of free travel and rights against government detention without charges are damaged or lost outright, and to add to the injustice of the rights-taking (from the injured party’s perspective), the rights were lost through no bad actions of the harmed party. Nonetheless, the rights-taking is done for the noblest of reasons – to vindicate the human rights to safety, security, and health of population members who are not ill.[72]

This conflict of rights can be even more dramatic in a case such as famine, wherein a number of people’s rights to life may be in direct conflict with the human property rights of someone who owns silos filled with grain.[73] Individuals with identical rights to life may be faced with situations in which there are only enough resources to sustain one of them.[74] In each of the above cases, ultimately a policymaker or judge (presuming the cases appear before a tribunal) must make a hard decision about whose rights should be vindicated and who goes away empty-handed – a particularly difficult decision if the empty-handed party must lose his or her life in the bargain.

There are three main ways in which human rights can come into conflict: Rights can conflict with identical rights held by another. Rights can conflict with different rights held by another. A right can conflict with a different right held by the party having the first right.[75] This conflict, arising out of cell-line bioprospecting, is an example of the second type of conflict. Indigenous communities’ rights to culture, religion, and development are impaired by the introduction into their communities of differing practices they may find offensive to their deeply cherished beliefs. Weighing against these cultural rights are the rights to life for (in just the case of leukemia alone) more than a quarter of a million men, women, and children each year. If the genetics of indigenous communities holds answers relevant to other disease processes (and there is good reason to suspect that their DNA holds such information, see Part II.A), the number may be many hundreds of times higher.

There is no question that a price can be placed on a human life in traditional legal circles. The very act of calculating damages in a wrongful death tort action requires the jury to do precisely that. From a policymaker’s perspective, the price used to judge a human being’s intrinsic worth must be understood and used to make difficult decisions on a daily basis. However, the case of cell-line bioprospecting is not one about putting a price on human life; it is about asking exactly how many human lives would it take to outweigh an indigenous community’s cultural rights and expectations of fair dealing?

International law is a unique legal landscape in which the rule of positive law does not hold complete sway.[76] Over the course of the past century, international law has trended away from a legal positivist understanding of law and embraced natural law concepts – concepts from which the very notion of ‘human’ rights are derived.[77] Unlike the jurisprudence of legal positivism, natural law leaves room for the objective use of pure reason to undergird the inquiry concerning making difficult policy choices.[78] It would not, therefore, be out of place to use ethical discourse to resolve the conflict. Indeed, this is precisely how a policymaker must deal with the case of cell-line bioprospecting from indigenous communities.

That a ‘higher’ law than positive law exists is not a new concept in international law. Following World War II, the victorious Allies sought to hold accountable for their atrocities Nazi officials, soldiers, and leaders.[79] The Nuremberg Trials were the result of this desire, but these judicial tribunals faced a serious legal problem – virtually nothing the Nazis did actually violated any international law or domestic statute.[80] One of the popular defenses brought by Nazi soldiers during these trials (and many others like them) was that they were not breaking the law; rather, they were following the law and their orders from superiors.[81] What law, after all, had they broken? The answer provided by the Allies, and one which still resonates in international law today, was that they had violated natural law.[82] Ultimately, it was argued that all people, everywhere, are responsible to a law higher than that made by political states, and that laws contrary to the ‘higher’ natural law do not hold sway in conferring obligation.[83] At the time, this conclusion was met with deep skepticism and fear.[84] However, intervening years have lessened the opposition to this idea, and now it is the dominant understanding of human rights that the rights are found in the natural law.[85]

The idea that a trans-cultural normative standard can be used to judge the actions of individuals or states has been met with some resistance. The most common arguments presented in the relevant philosophical journals included ideas of moral relativity[86] and emotivism[87]. Apart from a very small number of philosophers, though, these ideas have been analyzed, found lacking, and widely discredited.[88] The concept that trans-cultural standards do not exist has been so thoroughly rebuffed, and is so uncontroversial, as to present the death of these ideas in introductory texts in Ethics.[89] This article will not seek to rehash well-settled principles of other academic works, and will presume that the reader is acquainted with the dominant mode of normative discourse in both academia and lay discourse – moral realism.[90]

This author feels no particular need to address the specific cultural claims of indigenous communities. In many cases, they are clearly false, logically fallacious, or based upon primitive superstition more clearly associated with the bronze-age than with the modern era. In other cases, the cultural beliefs which cause opposition to bioprospecting are only loosely connected to any objective normative standards (such as utilitarian calculus, or categorical ethical systems like Kantianism). The cultural opposition by indigenous groups to bioprospecting need not concern the reader at this juncture, and this article will not attempt to lay out a complete analysis showing such beliefs to be inaccurate representations of the actual state of the moral world. Rather, this article will assume the contrary position for the sake of analysis - that the cultural beliefs of the indigenous groups have merit and that they should be respected. The inquiry being undertaken here, assuming as given the validity of the indigenous cultural beliefs which cause opposition to bioprospecting, is whether bioprospecting should be prohibited or allowed.

Utilitarian calculus clearly demands that all people’s well-being be taken into account equally, and that a policy-maker must seek to cause the greatest possible benefit or cause the least possible harm in his decisions.[91] Since this work assumes that loss of indigenous culture is a harm to be avoided (a position very much in contention elsewhere), the ethical question to be answered then is which harm – the damage to indigenous cultures or the loss of life for those bioprospecting would save – is the greater harm to be avoided.

Ethical prescriptions frequently contain within them the principles which underlie human rights norms – it is after all from these principles, not from the treaties themselves or our recognition of such values, that the rights derive their force and insistence in international law.[92] Why utilitarian values like “national security, public safety, public order, public health, and public morality” may outweigh usual human rights is because these values themselves contain the vindication of human rights for the far greater numbers of people.[93] Our commitment to the objective ethical truths of utilitarian policymaking should see an allowance made for the rights to engage in scientific and medical research that shows such unparalleled promise to save or improve the lives of countless millions of people. That such a position also serves to vindicate one of the highest international rights under the International Covenant on Civil and Political Rights serves only to bolster the claim.[94]

Ultimately, logic demands that life be a higher value than any other moral value. The enjoyment of all other rights, whether rights to practice a religion or to be free to speak one’s mind, is predicated upon continued existence of the self. Without freedom to remain alive, no other right can be guaranteed in any meaningful way. Regardless of the damage to indigenous culture, the lives of many hundreds of thousands of people must outweigh – and must take priority and precedence in an ethical policy-maker’s decision.

This is not to say that it is appropriate to cause any conceivable level of damage to indigenous groups. Recall that the trans-cultural normative standards require that a policy-maker reduce harm to the lowest possible amount.[95] While cultural harms cannot be avoided while protecting life in this context (due to their mutually exclusive application), it is here that the division of anti-bioprospecting arguments proposed in Part II.B of this article (cultural and economic) is most useful. The economic objections to bioprospecting (inadequate compensation, lack of accessible remedial measures, inadequate informed consent to research) are not mutually exclusive with the protection of life which must, by necessity, take precedence over cultural objections. Because the economic objections to bioprospecting can be remedied while still allowing bioprospecting to continue, it is imperative that they be remedied so as to reduce the amount of harm caused by the practice, and it is the urgent hope of this author that the international community address these objections in a timely and clear manner.

This article has not claimed that it will always, and in every case, be appropriate to engage in bioprospecting for indigenous cell-lines. In some cases, evidence may indicate that a given population’s DNA might not be worth the very real costs of collecting it. In other cases, a tribe’s affront at the spoliation of their cherished beliefs may be so great as to outweigh some small benefit expected to be received from harvesting their genetic material. Utilitarian calculus demands that all people’s interests be treated equally, and that the interests of all be taken into account, so it must be conceded that such an instance may certainly occur and that in such an instance the proper legal decisions should uphold the rights of indigenous communities over the rights of those who will die without the indigenous community’s genetic resources. Nonetheless, this author feels no hesitation to observe that when indigenous individuals enter into voluntary arrangements, in exchange for valuable consideration, to supply a medical researcher with cheek swabs, hair samples, or occasionally a blood sample drawn by a highly trained medical professional, that the bargain should be upheld even to the detriment of that person’s beliefs or to the detriment of the beliefs of others, because the damage caused by the inaction of not harvesting the DNA is so great.


Genetics is one of the newest and most promising scientific disciplines to impact epidemiology and medicine in the past century. Understanding genetics has already provided scientists and medical researchers with new tools, technologies, and strategies to deal with problems that once seemed intractable. These advances have saved countless lives, increased human life expectancy, and markedly improved the quality of life for the people whose lives these new technologies and medicines have helped, and their families and friends. The potential of genetic material from isolated populations like indigenous communities can be an invaluable resource to help scientists discover new and innovative ways in which to help people live longer and healthier lives.

Harvesting this genetic material, though, can be problematic for indigenous communities with particular beliefs about nature, knowledge, and stewardship for their bodies and their environment. These cultural and spiritual worries are compounded by justified objections concerned with fair dealing and informed consent to the research. These worries are real and should be taken seriously, but do not represent the full measure of bioprospecting’s consequences. Ultimately, human lives are on the line, and no inconsequential number of them are impacted beneficially by the scientific research.

Politics, and decision making in law, is characterized by the necessity of making hard decisions that impact people’s lives, beliefs, and rights in profound and sometimes tragic ways. Whether to allow or prohibit human cell-line bioprospecting from indigenous communities is one such hard decision. Despite the difficulty posed by the dilemma, objective ethical considerations which underlie human rights require that as a general rule, bioprospectors be allowed substantial access to indigenous communities for the benefit of all.

[1] MATT RIDLEY, GENOME 38 (1999).
[2] Id., at 243. Ridley’s pronouncements are worth quoting in full. “As the third millennium dawns, we are
for the first time in a position to edit the text of our genetic code. It is no longer a precious manuscript; it is on disc. We can cut bits out, add bits in, rearrange paragraphs or write over words.”
[3] Id., at 250. Ridley cautions that while gene therapy is still a new science, cancer treatment has never
looked so hopeful – a fact that Ridley lays at the doorstep of genetic science.
[4] Id., at 243.
[5] See generally, Annie O. Wu, Surpassing the Material: The human rights implications of informed consent in bioprospecting cells derived from indigenous people groups, 78 WASH. U. L.Q. 979 (2000); Russel L. Barsh, Pharmacogenomics and Indigenous Peoples: Real Issues and Actors, 11 CARDOZO J. INT’L & COMP. L. 365 (2003-2004).
[6] Bioprospecting, also known as “biocolonialism” and “biopiracy,” refers to the act of researchers using materials, knowledge, and genetic resources from indigenous populations in furtherance of scientific goals. This paper will refrain from using the terms “biocolonialism” and “biopiracy” due to their highly prejudicial connotations, which makes them unsuited for reasonable academic use, particularly in the context of determining the moral permissibility of bioprospecting.
[7] Quinine (C20H24N2O2) is an important find for overall world health. Originally extracted from the bark of the Peruvian cinchona tree, the anti-malarial drug can save many lives. Naomi Roht-Arriaza, Of Seeds and Shamans: The appropriation of the scientific and technical knowledge of indigenous and local communities, 17 MICH. J. INT’L L. 919, 921-22 (1995-1996). This is particularly important discovery because of the prevalence of lethal cases of malaria – more than 3,000 lethal cases just in sub-Saharan African children every day (more than one million children per year). African Medical & Research Foundation, Statement of Objectives, at Worldwide, malaria cases are estimated at 350-500 million (both lethal and non-lethal), and contribute to lower life expectancies and lower qualities of life for those in territories at risk for malaria. World Health Organization, Executive Summary of the World Malaria Report, 2005 at
[8] World Health Organization, Executive Summary of the World Malaria Report, 2005 at
[9] See Roht-Arriaza, supra, note 7, at 922.
[10] Malignant cancers were the second leading cause of death in the United States in the year 2000 (the most recent year for which mortality data were found), accounting for more than 550,000 deaths in the United States alone. Nearly one in every four deaths in the United States is due to cancer. Robert N. Anderson, Centers for Disease Control and Prevention: National Vital Statistics Reports, at race/NationalVitalStatisticsReportsVol50Number16.pdf
[11] See Roht-Arriaza, supra, note 7, at 922.
[12] Id., at 923.
[13] Id.
[14] These agricultural advances should be of particular interest to the 816,000,000 people who, worldwide, starve to death or die of malnutrition-aided disease each year. UNESCO, What the World Wants: Eliminating Starvation/Feeding Humanity, at
[15] See generally, Roht-Arriaza, supra, note 7.
[16] Id., at 925.
[17] While not a cure for existent cases of leukemia, the potential to prevent adult leukemia should be celebrated. In the year 2000 alone, leukemia caused 21,339 deaths in the United States. World Health Organization, Mortality Database: Tables, at
[18] Neil A. Campbell, et al., BIOLOGY 432-34 (5th ed. 1999).
[19] Id.
[20] Id., at 434.
[21] Creating cell-lines that are stable and self-replicating is a difficult and expensive process. See, Campbell, supra, note 18, at 219, 823-24.
[22] Debra Harry, et al., Indigenous People, Genes and Genetics: What Indigenous People Should Know About Biocolonialism, INDIGENOUS PEOPLES COUNCIL ON BIOCOLONIALISM, May 2000, at 25. [accessed at]
[23] Id., at 20.
[24] Id.
[25] Id.
[26] Id.
[27] The anti-cancer drugs made using the rosy periwinkle plant from Madagascar have resulted in sales for the Eli Lilly corporation of over $100 million, annually. The profit Madagascar received for the research was quite small (Professor Roht-Arriaza characterizes Madagascar’s benefit as “virtually nothing”). See, Roht-Arriaza, supra, note 7, at 922.
[28] See, Harry, supra, note 22, at 21.
[29] Id.
[30] See, Ridley, supra, note 1, at 243. “…the obvious destination towards which genetic research is headed, the ultimate prize if you like, is a genetically engineered human being. One day, centuries hence, that might mean a human being with newly invented genes. For the moment it means a human being with an existing gene borrowed from another human being, or from an animal or plant.” Id. Such results in humans are still in the early research stages, but “… procedures that influence the germline are routine in labs working on fruit flies and mice, and researchers have done early procedures on nonhuman primates.” Gregory Stock, REDESIGNING HUMANS 2 (2003).
[31] See, Harry, supra, note 22, at 21.
[32] Id.
[33] Id.
[34] Id., at 21-22.
[35] Id.
[36] Id.; Laurie A. Whitt, et al., Belonging to the Land: Indigenous Knowledge Systems and the Natural World, 26 OKLA. CITY U. L. REV. 701, 731 (2001). “Indigenous recognition that the process of commodification may distort something’s value and significance , and result in a failure to meet one’s custodial responsibilities regarding it, is widespread. …Consider the Maori account of this. The third of the three baskets of knowledge, which form the basis of traditional Maori epistemology, contains all knowledge of the natural world (agriculture, medicine, astronomy, fishing, crafts, etc.). Such knowledge is considered tapu – sacred and set apart, or removed from profane use. It s treated with special respect, since it is also endowed with mana or power.” Id.
[37] See, Harry, supra, note 22, at 23.
[38] Id.; See, BBC NEWS ONLINE, Scientists finally study Kennewick Man (2005), at
[39] BBC NEWS ONLINE, Scientists finally study Kennewick Man (2005), at
[40] Id.
[41] Id.
[42] See, Armand Minthorn, Human remains should be reburied, CONFEDERATED TRIBES OF THE UMTILLA RESERVATION POSITION PAPER (1996), at Minthorn, a religious leader of the Umtilla tribe, deserves quoting. “Our religion and elders have taught us that we have an inherent responsibility to care for those who are no longer with us. We have a responsibility to protect all human burials, regardless of race. We are taught to treat them all with the same respect. Many people are asking if there’s any chance for a compromise in this issue. We remind them that not only has this individual already been compromised, but our religious beliefs have once again been compromised. Many non-Indians are looking for a compromise – a compromise that fits their desires.” Id.
[43] See generally, Annie O. Wu, Surpassing the Material: The human rights implications of informed consent in bioprospecting cells derived from indigenous people groups, 78 WASH. U. L.Q. 979 (2000); Russel L. Barsh, Pharmacogenomics and Indigenous Peoples: Real Issues and Actors, 11 CARDOZO J. INT’L & COMP. L. 365 (2003-2004); Laurie A. Whitt, et al., Belonging to the Land: Indigenous Knowledge Systems and the Natural World, 26 OKLA. CITY U. L. REV. 701 (2001); Laurie A. Whitt, Indigenous Peoples, Intellectual Property & the New Imperial Science, 23 OKLA. CITY U. L. REV. 211 (1998); Keith Aoki, Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of International Intellectual Property Protection, 6 IND. J. GLOBAL LEGAL STUD. 11 (1998-1999); Cindy Hamilton, The Human Genome Diversity Project and the New Biological Imperialism, 41 SANTA CLARA L. REV. 619 (2000-2001); Kara H. Ching, Indigenous Self-Determination in an Age of Genetic Patenting: Recognizing an Emerging Human Rights Norm, 66 FORDHAM L. REV. 687 (1997-1998); Meika Foster, The Human Genome Diversity Project and the Patenting of Life: Indigenous Peoples Cry Out, 7 CANTERBURY L. REV. 343 (1998-2000); David P. Fidler, Neither Science nor Shamans: Globalization of Markets and Health in the Developing World, 7 IND. J. GLOBAL LEGAL STUD. 191 (1999-2000).
[44] Andrea D. Brashear, Evolving Biotechnology Patent Laws in the United States and Europe: Are they inhibiting Disease Research?, 12 IND. INT’L & COMP. L. REV. 183 (2001-2002).
[45] David J. Bederman, INTERNATIONAL LAW FRAMEWORKS 13 (2d. ed. 2006).
[46] Id., at 24-25.
[47] Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, 3d. Sess., pt.1, at 71, U.N. Doc. A/810, arts. 1, 2 (1948).
[48] Id., at art. 22.
[49] International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 368.
[50] Id., at art. 7. It seems likely that ‘free consent’ can be read as requiring ‘informed consent.’
[51] Id., at art. 10.
[52] Id., at art. 1.
[53] Some cell-line bioprospecting is used for non-medical purposes, however. The Human Genome Diversity Project (HGDP) gathers genetic data from hundreds of different groups (including indigenous groups). According to the Morrison Institute which runs the HGDP, among possible uses for this data are understanding human relatedness, learning about human migratory patterns (using biology to confirm/disprove archaeological findings), understanding early hominid evolution locations, as well as the speed with which human DNA mutates. Morrison Institute, Human Genome Diversity Project, Frequently Asked Questions, at
[54] World Health Organization, Estimates of Death by Cause, at
[55] See, Wu, supra, note 5, at 984.
[56] See, Universal Declaration of Human Rights, supra, note 47, article 3. (Articles 1 and 2 of the Declaration do not appear to contain substantive rights. Article 1 appears to be a broad statement of principle. Article 2 indicates that rights inhere equally in all persons.)
[57] See, International Covenant on Civil and Political Rights, supra, note 49, article 6.
[58] Id.
[59] Article 6 concerns itself on the face of the document with use of the death penalty, rights of appeal and amnesty following a sentence of death, and state-sponsored genocide. Id.
[60] Office of the High Commissioner for Human Rights, General Comment No. 6: The Right to Life (art. 6) (1982), at
[61] Id.
[62] Id.
[63] Id.
[64] Id.
[65] Id.
[66] See, International Covenant on Civil and Political Rights, supra, note 49, article 4.
[67] Some rights Article 4 allows to be derogated in times of public emergency include rights against arbitrary arrest or detention, rights to speedy trial, rights to be informed of charges pending against you, rights to be treated humanely while in government custody, rights to fair and competent tribunals in which to have claims heard, rights of equality before the law in courts, and rights against ex post facto criminal prosecution. Id.
[68] Id. Article 4 also excepts from the allowance for derogation the rights of article 7, the first 2 paragraphs of article 8, article 11, articles 15 and 16, and article 18. Id.
[69] Amy Hardberger, Whose Job is it Anyway?: Governmental Obligations Created by the Human Right to Water, 41 TEX. INT’L L.J. 533, 534 (2006). “The right to life is now read more broadly to include the prevention of murder, war time atrocities, and measures that increase life expectancy like personal health and hygiene.” Id.
[70] Office of the U.N. High Commissioner on Human Rights, International Covenant on Economic, Social, and Cultural Rights, art. 11 (1966), at
[71] See generally, Xiaobing Xu & George Wilson, On Conflict of Human Rights, 5 PIERCE L. REV. 31 (2006).
[72] Id., at 32.
[73] Id., at 34.
[74] Id.
[75] Id.
[76] See, Bederman, supra, note 45, at 16-25.
[77] Id., at 1-6.
[78] Robert L. Hayman, Jr., et al., JURISPRUDENCE: CLASSICAL AND CONTEMPORARY 1-10 (2002).
[79] Judge Charles E. Wyzanski, Jr., Nuremberg: A fair trial? Dangerous Precedent, THE ATLANTIC MONTHLY
66-70, Vol. 177, No. 4. (1946).
[80] Id.
[81] Id.
[82] Id.
[83] Id.
[84] Id.
[85] See, Hayman, Jr., supra, note 78.
[86] Stanford Encyclopedia of Philosophy, Moral Relativism (2004), at
relativism. Moral Relativism is commonly understood as the idea that moral judgments are relative to the communities in which they arise. In other words, moral values hold no objective basis and cannot be properly applied to situations outside of the particular societies which created them.
[87] Stanford Encyclopedia of Philosophy, Alfred Jules Ayer (2005), at
Emotivism was a theory championed by A.J. Ayer in the 1930’s and 1940’s which asserted that moral judgments were not actually asserting to be facts about the world, but rather were in truth nothing more than personal ‘rahs’ or ‘boos.’ Essentially if an individual said ‘Murder is wrong,’ the individual is in reality asserting nothing more than the internal mental state ‘I dislike murder.’ Just as the statement ‘I like broccoli’ carries no concomitant obligation upon others to like or dislike broccoli, so too does ‘Murder is wrong’ carry no obligation for others to agree with the purely personal, emotional statement.
[88] JAMES RACHELS, ELEMENTS OF MORAL PHILOSOPHY Chs. 2-3 (2006). So clearly false are the ideas
proposed by those in opposition to the existence of a trans-cultural normative standard that their discredit is explained and shown in an simple philosophy text commonly used by high schools and introductory undergraduate courses. Id. Professor Rachels provides a useful summary of the main arguments which have shown moral subjectivists (cultural relativists and emotivists) to be wrong. These include fundamental incoherence, linguistic difficulties, logical fallacies, and ethical problems.
[89] Id.
[90] Stanford Encyclopedia of Philosophy, Moral Realism (2005), at Moral Realism is the dominant understanding of modern ethics and suggests that moral facts purport to explain actual states of the world, and are true if and only if the actual state of the world actually conforms to the asserted fact.
[91] See generally, JOHN STUART MILL, UTILITARIANISM (2005) (1841).
[92] See, Xu & Wilson, supra, note 71, at 37.
[93] Id.
[94] Id.
[95] See, MILL, supra, note 91.

1 comment:

Ecclectic Essayist said...

To date, I feel that this is one of my more controversial, well-reasoned, and well written works. I'm more than willing to accept that native peoples have been on the receiving end of a vast amount of oppression, suppression, and outright genocide. Colonial powers, both benign and outright hostile, have proven to have been nearly universally destructive to indigenous cultures and lifeways.

Nonetheless, a bleak and forbidding history of oppression does not give modern indigenous groups free reign to ignore the dictates of moral imperatives which constrain me just as much as them. The sentiment that everyone is connected and that we have a duty to look out for others is a very old one indeed. Am I not my brother's keeper, after all?