The main focus of Choquehuanca’s speech was on the need for international legal protection of the coca leaf as a genetic resource and heritage of the Andean-Amazonian Indigenous Peoples. He pointed at two mechanisms that could be explored for that purpose: the Nagoya Protocol of the Convention on Biological Diversity (CBD) and the upcoming legal instrument on traditional knowledge associated with genetic resources negotiated under the auspices of the World Intellectual Property Organization (WIPO).
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits contains provisions on the rights of Indigenous Peoples to sustainably use and benefit from the utilization of their genetic resources, including plant species. An example is the Rooibos agreement with South Africa’s KhoiSan people in which “the industry behind the herbal tea rooibos has agreed to pay a percentage of the money that is made to the indigenous people who used the plant before production was industrialised.” Gabon has been trying to apply the Nagoya rules to protect its native psychedelic plant iboga; the proposed agreement could “put an end to the illegal trade in Gabon’s ‘Sacred Wood’ and finally be able to allow traditional communities to also benefit equitably from the economic benefits of this ancestral national heritage.”
In the case of the coca leaf, multiple Indigenous Peoples across the Andean-Amazonian region share long-standing traditional uses and knowledge. In that context, Choquehuanca drew attention to the Protocol’s Article 10 which provides the option of “a global multilateral benefit-sharing mechanism to address the fair and equitable sharing of benefits derived from the utilization of genetic resources and traditional knowledge associated with genetic resources that occur in transboundary situations”, as is the case with coca leaf. At the Conference of the Parties of the CBD and its Nagoya Protocol scheduled for October 2024 in Colombia, according to Choquehuanca, “we could discuss the usefulness of a multilateral transboundary mechanism to protect the seal of the genetic information of the coca leaf.”5 [SPA 2] The Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, protecting products that have a particularly strong link with their place of origin, also offers the possibility of a joint application, under Article 5(4), in case of a trans-border geographical area of origin.
Meanwhile, also under WIPO auspices, a Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge is scheduled to take place from May 13-14, 2024, in Geneva. The conference will aim to adopt a new legal instrument to enhance the protection of Indigenous Rights within the current intellectual property regime. The UN Declaration on the Rights of Indigenous Peoples, in Article 31, provides that Indigenous Peoples have the right to control and protect the intellectual property over their cultural heritage, traditional knowledge and traditional cultural expressions. The current intellectual property regime, however, does not recognize those rights, and in practice Indigenous Peoples often face exploitation, misuse, misappropriation and theft of their genetic resources and traditional knowledge. A WIPO intergovernmental committee has been meeting for over two decades to address those gaps in the regime, and twice an Indigenous expert workshop has been convened to contribute to the process. The latest one, in February 2023, provides detailed comments on the draft text and expresses hope that “this instrument has a chance to redress the discriminatory nature of the current intellectual property system and establish mechanisms to recognize rights of Indigenous Peoples over their intellectual property at the international level.”6 The Indigenous experts also drew attention to the need to cooperate on transboundary matters, suggesting to set up a regional Indigenous body to effectively deal with genetic resources, traditional knowledge and cultural expressions that are spread over more than one State.
Addressing the transboundary challenges of the Nagoya Protocol and the WIPO negotiations, Choquehuanca has proposed convening a workshop of experts from the Indigenous communities cultivating coca leaf across the Andean-Amazonian region. A mechanism to protect the coca leaf as a genetic resource associated with traditional uses and knowledge has a double objective, said Choquehuanca:
“The hoped-for scenario that the critical review process conducted by the WHO results in liberating the coca leaf from Schedule I, would open the possibility of a legal international market for coca products in their natural or industrialised form. We want to ensure that a possible opening cannot be misused by foreign commercial companies, prevent the approval of patents related to the coca leaf without prior informed consent, and ensure that a large part of the revenues from a future legal market for natural coca leaf products contributes to the development of the Andean-Amazonian cross-border Indigenous peoples. At the same time, having a protection mechanism in place using the aforementioned international instruments, reinforced by national legislation and regional agreements, would help prevent the proliferation of cultivation and production of coca leaf products without adequate control in the event of the opening of international markets.”7 [SPA 3]
In that regard, valuable lessons can be drawn from Peruvian efforts to protect the maca plant against biopiracy and patenting by foreign companies. Maca roots have also been used by Andean Indigenous Peoples for thousands of years for nutritional and medicinal purposes. A booming international market for maca as a ‘superfood’ and natural medicine led to maca cultivation in China and U.S. companies acquiring patents over certain maca extracts. There have not been attempts by Indigenous groups to claim patent ownership of maca: “They avoid designating which groups have the right to the plant by keeping it in the realm of communal knowledge and cultural property.”8 Instead, Peru responded by strengthening domestic legislation and appealing to international protective mechanisms to revoke foreign patents.
In conclusion, Choquehuanca argued in Vienna that “the truth about the coca leaf, as a natural resource and not a drug, is gradually emerging in the collective consciousness” and that the “the full legalisation of the production and consumption of the coca leaf in its natural state would provide great benefits to humanity and great opportunities for industrialisation and commercialisation for the cross-border Indigenous Peoples of Bolivia, Peru, Colombia and Ecuador.” [SPA 4]
The globalization of uses of psychoactive plants from their original traditional niches to new cultural contexts comes with many challenges, and lessons can be learned from experiences with ayahuasca or kratom, for example. In the case of coca a process of diversification has taken place over the centuries as the use of the plant spread out of the original Indigenous areas into the northern Andes, the western Amazon basin and southwards into Chile and Argentina. Novel forms of consumption have continued to emerge in urban settings within the region, as well as abroad, following Andean migration patterns and through small-scale internet sales. As mentioned in the supporting dossier Bolivia submitted with the review notification, it is no longer possible today “to consider ancestral customs as the sole, properly valid point of reference, and in the process disqualify the wide range of present-day developments as somehow less legitimate”.9 [SPA 5] Still, to prevent corporate capture of international coca markets and to ensure that benefits will support Indigenous Peoples and local communities in the region, it will be important to use the Nagoya Protocol and WIPO mechanisms for the protection of cultural heritage, genetic resources, traditional knowledge and geographical indications.