Abstract
This interdisciplinary book offers a compelling analysis of the emerging collective rights of particular communities to biocultural property. Chandra carefully examines both the rights discourse as well as the entire collection of Intellectual Property Rights (IPRs) that have arisen within a culture built on particular notions of property in biogenetic resources that she calls ‘biocultures of entitlements’ (p. xxiv). The question that lies at the heart of this book is a familiar one to those who engage with the paradox that underlies human rights discourse and law: What do rights actually do in real places and for real people? Chandra’s more specific focus here is on the gaps between the promise and fulfilment of biocultural rights. Through a close look at emerging and often celebrated rights, Chandra shows how the claims of communities of farmers, peasants and ‘local indigenous’ (p. xix) peoples evolve as legal entitlements that further impoverish and marginalise them. She reveals how biocultural entitlements become mechanisms for exercising new forms of power over such communities, and how legal instruments that may appear to be inclusive are in fact designed to exclude. Herein lies the cunning of rights.
The book is divided into two parts. In the first part Chandra draws on a broad range of scholarship that includes work on the discourse of science and technology, commons, moral economy and property to set out the conceptual framework for the book. It is here that Chandra both reveals and problematises the ways in which narratives of law and technology co-produce biological property. She offers a well-researched account of the ways in which ‘new epistemic objects’ (p. 8) such as genetic codes and proteins are first created through a series of moves that separate them from their contexts by disaggregating biological wholes such as trees or seeds, and then transformed into commodities that can be owned and traded. In the second part of the book, she brings the theoretical insights developed in the first part to bear on the discourse on Intellectual Property (IP) in biocultures. Here, Chandra offers a comprehensive analysis of concepts such as ‘privilege’, ‘benefit’ and ‘rights’ recognised and created for different rights holders within the IP discourse, as well as an assessment of instruments like the Benefit-Sharing Agreements (BSA) developed to give effect to the respective rights. Chandra shows how legal instruments such as the BSA and Material Transfer Agreements create and protect ‘property rights’ of powerful corporations that claim IPRs in biogenetic resources, and simultaneously limit claims of the farmers, peasants and Indigenous peoples who have cared for the land and plants by formalising their claims simply as ‘benefits’. Particularly interesting here is Chandra’s analysis of the manoeuvers and consequent transformations and doctrinal departures IP law itself undergoes in the process of creating rights that are inherently ‘duplicitous’ (p. xix).
Chandra’s account of the manner in which narratives of law, politics and technology come together in this particular discourse of legal entitlements only to further dispossess communities will be of particular interest to those engaged in critical studies of property law, IPRs as well as collective rights. It is also a valuable resource for those involved in advocacy and social mobilisation in the realm of emerging IPRs. Chandra rightly recognises the limits of the liberal rights discourse in the failure of these rights to offer much to communities they are meant to enable. The conception of rights that underlies the framework of legal entitlements to biocultures is predicated on a particular kind of universal individual bearer of rights. Chandra argues that while the ‘cultural turn’ (p. 192) has created a space for collective or group rights within the liberal rights discourse, thus leading to the emergence of new legal entitlements, the normative bearings of that discourse, and the institutions built on them demand that collectives conform to existing models of claim-making. The violence this does to diverse communities who seek to access these entitlements is palpable in the stories Chandra references in this regard. She sees in the persistence of such violence despite the recognition of cultural rights in legal discourse and specific IPR instruments, the limits of legal pluralism.
It is not Chandra’s goal in this book to explore how legal plurality might help rethink the terrain of legal entitlements. However, since legal pluralism appears briefly in her conclusion, I offer some thoughts in response. I do this with the hope that future research that builds on the important intervention The Cunning of Rights makes by opening up for scrutiny the terrain of IPRs in biocultures will provide a more sustained engagement with multiple legal orders.
The lived experience of being the holders of rights that include only to further exclude has led many Indigenous peoples to turn to their own laws in order to contest and reframe existing and emerging laws. A community’s claim that ‘the concept of “cultural property” obscures Gitxsan law’ (Overstall 2008: 93) is both a challenge and an opportunity to draw on multiple legal traditions. And yet, the potential of such a claim to address what Chandra describes as the ‘in-built lag between [the] stated ambition and outcomes’ of IP rights (p. xix) remains largely unexplored. Despite the turn to ‘culture’ within the rights discourse, there is limited, if any, recognition of Indigenous laws. Discussions about Indigenous culture that disregard the existence of Indigenous laws flatten ‘narratives of indigeneity’ (p. xxi) and eclipse their radical challenge to familiar theoretical frames. Legal responses to collective entitlements are inadequate also because formal legal institutions insist on seeing difference as ‘cultural’. In this way, the move to recognise ‘culture’ can simultaneously be an attempt to not recognise laws that are a part of culture. When an Indigenous community’s claim is translated as ‘cultural’, its reception within formal legal institutions is seen as an encounter between a culture and the law. A more meaningful engagement with such a claim would, instead, make it possible to see the encounter as one between different legal systems. Is this too then perhaps part of the cunning of rights? It is a question worth considering for those who, like Chandra, view rights as a necessary tool in the quest for justice. Reading her thought-provoking book is a great place to start.